K.H. Noufal vs Sharafudeen

Bechu Kurian Thomas, J

Petitioner is the accused in S.T. No. 83/2019 on the files of Judicial First Class Magistrate Court-IV, Palakkad. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act, 1881. When PW1 was sought to be recalled for cross examination through CMP No. 89/2024 by the impugned order, the learned Magistrate dismissed the same after noticing that the petitioner was not ready to cross examine the witness. The aforesaid order is under challenged.

I have heard Shri. Sarath M.S., learned counsel for the petitioner as well as Shri. Noushad K.A., learned Public Prosecutor.

It is noticed from the impugned order that, on an earlier occasion when PW1 ought to have been cross examined, the petitioner failed to do so and subsequently an application for recall of the witness was filed which was allowed on 15.11.2023. Even thereafter, petitioner failed to cross-examine despite the presence of the witness on 19.12.2023 and again on 19.01.2024. Thus, the learned Magistrate was constrained to dispense with the cross examination of the accused under Section 309. Thereafter, the case was posted the statement under Section 313 Cr.P.C. at which juncture, the petitioner filed the application for recall of witness under Section 311 Cr.P.C.

Considering the aforesaid circumstances, this Court is of the view that, no fault can be found with the impugned order the witness was not cross examined solely due to the default of the petitioner. The learned Magistrate had granted several opportunities to the petitioner to cross examine the witness and, the observation that the attempts of the petitioner was only to drag the matter cannot also be said to be perverse warranting an interference.

However, considering the circumstance that, the petitioner had not at all cross examined the complainant, this Court is of the view that interest of justice demand that one last opportunity be granted to the petitioner on terms.

Accordingly, the impugned order dated 02.03.2024 is set aside and PW1 shall be recalled for cross examination, which shall be carried out on the date fixed by the learned Magistrate. The terms for allowing this application is hereby fixed at Rs. 2,500/-which shall be paid to the Kerala State Legal Services Authority within ten days from today.

This Criminal Miscellaneous case is allowed as above.