Dismissed

Praveen P.P v. State of Kerala

Kerala HC20 Oct 2023Crl.MC/8756/2023

Case brief

AI extract

What is this about?

Petitioner challenged the order dismissing his application under Section 311 CrPC to re-examine a witness in a cheque dishonour case. The High Court held issuing the order at the trial's conclusion would prejudice the accused, thus dismissing the writ petition.

What did the court decide?

Dismissal of the Criminal Miscellaneous Case filed to set aside the order rejecting the application for recall and re-examination of a witness.

Praveen P.P Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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Crl.M.C No.8756 of 2023

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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FRIDAY, THE 20TH DAY OF OCTOBER 2023 / 28TH ASWINA, 1945
CRL.MC NO. 8756 OF 2023

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AGAINST THE ORDER/JUDGMENT ST 276/2020 OF JUDICIAL MAGISTRATE OF

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FIRST CLASS, KALPETTA

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PETITIONER/S:

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PRAVEEN P.P
AGED 35 YEARS
S/O PREMAN, INDIRA NIVAS, MEENANGADI P.O,
SULTHANBATHERY, WAYANAD, PIN - 673591

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BY ADVS.
P.V.ANOOP
ANJU R S.
PHIJO PRADEESH PHILIP
K C MOHAMED RASHID
BIJITHA B. BOSE

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RESPONDENT/S:

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1STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
2AJI VADAKKETHIL
S/O V.D MATHEW, VADAKKETHIL HOUSE, KANIYAMBETTA,
KAMBALAKKAD P.O, VYTHIRI, WAYANAD, PIN - 673122

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OTHER PRESENT:

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 Smt Nima Jacob, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No.8756 of 2023

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C.S DIAS,J.

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Crl.M.C No.8756 of 2023

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----------------------------Dated this the 20^th day of October, 2023

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ORDER

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The Crl.M.C is filed to set aside the order in CMP

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No.896/2023 in ST No.276/2020 passed by the Court of

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the Judicial Magistrate of First Class, Kalpetta, dismissing the application filed by the petitioner under Sec.311 of the Code of Criminal Procedure ( in short, Code) to reopen his evidence and to re-examine him and examine an additional witness. The petitioner was the complainant and the second respondent was the respondent in the above case. For convenience, the parties are referred to as per their status before the court

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below.

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Crl.M.C No.8756 of 2023

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Facts in brief

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The complaint was filed against the second

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respondent for the offence under Section 138 of the Negotiable Instruments Act (for brevity, “Act”). The complainant’s case is that, he and the accused had entered into an agreement of pledge on 24.7.2019, whereby the accused had, on receipt of Rs.1,25,000/from the complainant, pledged his vehicle for a period of two months. On the expiry of the time period, the complainant returned the vehicle and demanded the amount. Then, the accused issued a cheque for the above amount in discharge of the liability. The cheque, on presentation to the bank for collection, got dishonoured due to ‘insufficiency of funds’ in the bank account of the

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Crl.M.C No.8756 of 2023

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accused. Even though the complainant issued a statuory demand notice, the accused failed to pay the amount.

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Hence, the accused committed the above offence.

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In the trial, the complainant was examined as

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PW1 and Exts.P1 to P5 were marked on his side. In the examination conducted under Section 313 of the Code, the accused denied all the incriminating circumstances that were put against him. It is averred that at the stage of trial, the complainant had filed CMP No.896/2023, a copy of which is not produced along with Crl.M.C, to recall PW1 and re-examine him and also summon an additional witness, who witnessed the execution of Ext P5 agreement. The application was opposed by the accused. The court below, after adverting to the rival contentions, by the impugned Annexure A order,

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Crl.M.C No.8756 of 2023

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dismissed the application. Annexure A order is irregular, improper and illegal. Hence, the Crl.M.C.

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Heard; Sri.P.V Anoop, the learned counsel

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appearing for the petitioner/complainant and Smt.Nima Jacob, the learned Public Prosecutor appearing for the first respondent/State on admission.

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On going through the materials on record, it is seen that the complaint was filed in the year 2020. It is not discernible as to when the complainant was examined as PW1. The petitioner has not produced the application (CMP No.896/2023) filed to reopen the evidence. The fact remains that Annexure A order was passed on 5.8.2023. The Crl.M.C is filed today i.e, on 20.10.2023.

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Indisputably, the questioning of the accused under Sec.313 of the Code is complete.

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Crl.M.C No.8756 of 2023

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On going through the order, the learned Magistrate has found that the complainant had voluntarily deposed in his cross-examination that Ext P5 is a lease deed. But actually, Ext P5 is styled as a pledge deed. Whereas, the complainant also deposed that he had taken the vehicle on ‘lease’ and that the word used as

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‘pledge’ is not correct. It is for the purpose of clarifying the word used as ‘lease’ in his oral testimony as ‘pledge’ that he has sought to recall himself and re-examine him and to also examine another witness, who purportedly

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has seen the execution of Ext P5 agreement.

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Sec.311 of the Code reads as follows:

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311. Power to summon material witness, or examine person present

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Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.

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Crl.M.C No.8756 of 2023

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A reading of the above provision undoubtedly

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reveals that it is for the Court at any stage of the enquiry or trial, to decide as to whether any witness has to be

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summoned and examined or recalled and re-examined for

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the Court to arrive at a just decision.

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In the case at hand, the court below found that CMP No.896/2023 has been filed by the petitioner only for the purpose of filling up the lacuna in his evidence,

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which if permitted would cause prejudice to the accused. Consequently, the court below dismissed the application. I do not find any error, illegality or impropriety in the impugned order passed by the court below in rejecting the above application at the fag end of the trial.

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Crl.M.C No.8756 of 2023

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In the above conspectus, I am of the view that the

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Crl.M.C is devoid of any merits or substance and is

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hence, resultantly dismissed.

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SD/-

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sks/20.10.2023 C.S.DIAS, JUDGE

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Crl.M.C No.8756 of 2023

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APPENDIX OF CRL.MC 8756/2023

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PETITIONER ANNEXURES

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Annexure A1TRUE COPY OF THE ORDER DATED 05.08.2023 IN
CMP 896/2023 IN ST 276/2020 PASSED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT,
KALPETTA

Praveen P.P v. State of Kerala

Case brief

What is this about?

What did the court decide?

Praveen P.P v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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