**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR**
**THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940**
**Crl.MC.No. 3381 of 2018**
Crl.M.P. No. 7659 of 2017 in S.T. No. 151 of 2013 on the file of the Judicial Magistrate of First Class – II, Pathanamthitta
## **PETITIONER(S)/ACCUSED**
**ANURADHA K.P., AGED 62 YEARS,W/O UNNIKRISHNA PILLAI,K.K.B VILASAM, KUMMANNOOR.P.O,KONNI,PATHANAMTHITTA DISTRICT.**
**BY ADV.SRI.V.SETHUNATH**
## **RESPONDENT(S)/COMPLAINANT/STATE:**
**1. LAILA BEEVI,**
**AGED 62 YEARS,W/O SHAMSUDEEN,THANNIMOOTIL HOUSE,**
**KUMMANNOOR.P.O,KONNI,PATHANAMTHITTA DISTRICT,PIN-689691.**
**2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,KOCHI,PIN-682031.**
**BY PUBLIC PROSECUTOR SRI.E.C. BINEESH**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **Crl.MC.No. 3381 of 2018 ()**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
## **;;;**
**ANNEXURE 1 TRUE COPY OF THE ORDER IN CR.M.P.7659/13 IN S.T.NO.151/2013 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE NO.II,PATHANAMTHITTA ANNEXURE 2 THE TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT IN S.T.NO.151/2013 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE NO.II,PATHANAMTHITTA**
**ANNEXURE 3 THE TRUE COPY OF THE CHIEF AFFIDAVIT FILED BY THE 1ST RESPONDENT**
**ANNEXURE 4 THE TRUE COPY OF THE CROSS EXAMINATION AND RE EXAMINATION OF THE COMPLAINANT**
**ANNEXURE 5 TRUE COPY OF THE PETITION IN CR.M.P.NO.7659/13 IN S.T.NO.151/2013 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE NO.II,PATHANAMTHITTA ANNEXURE 6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/ACCUSED IN CR.M..P.NO.7659/13 IN S.T.NO.151/2013 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE NO.11,PATHANAMTHITTA**
**ANNEXURE 7 THE TRUE COPY OF THE ORDER SHEET OF THE PROCEEDINGS IN S.T.NO.151/2013 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II,PATHANAMTHITTA.**
## **/true copy/**
**P.S. TO JUDGE**
## B. SUDHEENDRA KUMAR, J.
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Crl.M.C. No. 3381 of 2018
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Dated this the 12[th] day of July, 2018
## ORDER
The petitioner is the accused in S.T. No. 151/2013 on the files of the court below. The first respondent herein filed a complaint against the petitioner before the court below alleging offence under Section 138 of the Negotiable Instruments Act. After recording the evidence of PW1, CMP 7659/2017 was filed by the complainant praying for re-opening the evidence for further
examination of PW1. The court below allowed the said application as per Annexure-1 order, against which this Crl.M.c. has been filed.
2. Service is complete. However, there is
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no appearance for the first respondent. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. Annexure-5 is the copy of CMP
7659/2017 filed by the complainant before the court below. It is stated in Annexure-5 that the complainant wanted to induct the copy of the FI statement in C.C. No. 592 of 2012 into evidence by further examining PW1. It is stated that the
petitioner herein had a contention that the petitioner had no acquaintence at all with the complainant and that he had no transaction at all with the complainant. However, the FI statement referred to above would show that the petitioner had admitted the borowing of the money by the petitioner from the complainant. For the said reason, the complainant wanted to mark the above said FIS through PW1.
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4. The complainant further contended that during the cross-examination of PW1, PW1 stated that the money involved in this case was obtained by the complainant from her husband even though the money was in fact taken by the complainant as loan from the Service Co-operative Society. Therefore, the complainant wanted to give further evidence clarifying the above aspect as well. For the said reasons, Annexure-A5 petition was filed.
5. The learned counel for the petitioner has
submitted that there was long and unexplained delay in filing the above said CMP and hence the court below ought not have allowed the same. It has been further argued by the learned counsel for the petitioner that the above said CMP was filed only for the purpose of filling up the lacuna and in the said circusmtances, the said CMP ought not
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have been allowed by the court below. Annexure-7 would show the proceedings of the court below. As per Ananexure-7, the complainant was examined as PW1 on 11-2-2016. CMP 7659/2017 was filed only on 13-11-2017. This would show that the above said CMP was filed after a period of 1 year and 9 months after the examination of PW1 before the Court. After the examination of PW1, the case was having
17 posting dates. However, no petition was filed by the complainant till the 17[th] posting date of the case. The above CMP was filed only on the 18[th] posting date of the above said case and that itself long after the closing of the evidence of the prosection as well as the defence. The
petitioner was also examined under Section 313 Cr.P.C. long back. The case was also heard in part. No reason had been stated by the complainant as to why there was inordinate delay in filing the above said CMP.
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6. In order to enable the court to find out the truth and render a just decision, the salutory provisions of Section 311 Cr.P.C. were enacted, whereunder any court by exercising its discretionary authority at any stage of the enquiry or the trial or other proceedings can summon any person as witness or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined, who is expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and
prosecution but also from the point of view of an orderly society. The Apex Court in Ratanlal v. Prahlad Jat and Others [(2017) 9 SCC 340] held that the power under Section 311 Cr.P.C. is to be exercised only for strong and valid reasons and
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it should be exercised with caution and circumspection. The Apex Court further held that re-calling is not a matter of course and the
discretion given to the court has to be exercised judicially to prevent failure of justice and therefore, the reasons for exercising this power should be spelt out in the order. The Apex court further held in Ratanlal (supra) that the delay in filing the application is one of the important factors which has to be explained in the application.
7. In this case, no explanation was given
by the complainant as to why there was inordinate delay from 11-2-2016 to 13-11-2017 in filing the above said CMP. After a passage of one year and nine months, the complainant filed the above said CMP for further examination of PW1. Since no reason had been stated by the complainant for the
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inordinate delay in filing the above said petition, the court below would have been justified in rejecting the application. However, the court below without considering the said aspect allowed the petition. One of the reasons stated by the complainant in filing the above said CMP was to give a clarification with regard to the evidence already tendered by PW1. The said clarification can, no doubt, be said to be a clarification for the purpose of filling up of the lacuna in the
evidence of PW1. In order to prove the FIS in a case, there is no need to further examine PW1, particularly when PW1 was not a party to the said proceedings. The complainant could have inducted the said FIS into evidence by other methods. This being the situation, particularly when no reason had been assigned for the long delay in making the above said CMP, I find no justification in allowing the above said CMP by the
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court below. In view of the above said reasons, Annexure-A1 order passed by the court below in CMP 7659 of 2017 in ST 151 of 2013 cannot be sustained.
In the result, this Crl. M.C. stands allowed and Annexure-1 order passed by the court below in CMP 7659 of 2017 in S.T. 151 of 2013 stands set
aside.
Sd/-B. SUDHEENDRA KUMAR, JUDGE.
ani/
