Thaliyath Syndicate vs Sunil O.S
2021 Latest Caselaw 8917 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

   WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

                     Crl.MC.No.334 OF 2021(B)

  AGAINST THE ORDER IN CC 7629/2014 DATED 07-01-2021 OF JUDICIAL
             MAGISTRATE OF FIRST CLASS ,IRINJALAKUDA


PETITIONER/PETITIONER/COMPLAINANT:

             THALIYATH SYNDICATE
             IRINJALAKUDA VILLAGE AND DESOM,
             REPRESENTED BY MANAGING PARTNER NOBLE T.FRANCIES,
             AGED 49, S/O.THALIYATH FRANCIES THALIYATH HOUSE,
             IRINJALAKUDA VILLAGE AND DESOM, TRISSUR DISTRICT.

             BY ADV. SRI.T.N.MANOJ

RESPONDENT/RESPONDENT/ACCUSED:

      1      SUNIL O.S.
             S/O.SREEDHARAN,
             OLLUPARAMBIL HOUSE,
             KORUMBISSERY DESOM,
             IRINJALAKUDA,
             POST-680 121.

      2      STATE OF KERALA,
             THROUGH PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             KOCHI-682 031.


             PP - SMT. PUSHPALATH M.K.

          THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

     17.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.334 OF 2021
                                      2


                                  ORDER

This is an application filed under Section 482 of the code of

Criminal Procedure seeking to set aside Annexure (d) order of the

Judicial First Class Magistrate, Irinjalakkuda in

Crl.M.P.No.4514/2020 in C.C.No.7629/2014. That was a

complaint filed under Section 142 of the Negotiable Instruments

Act, alleging the offence punishable under Section 138 of the Act.

2. The complainant was examined as PW1. It seems that,

during the course of examination, contention doubting the status

of the complainant besides his capacity to lend money was raised.

In order to meet the contention, the complainant filed an

application under Section 311 of the Cr.P.C seeking to summon

the Inspecting Assistant Commissioner IAC office, Irinjalakkuda.

The complainant/ petitioner has a case that, he was having a

money lending licence at that point of time, but it could not be

produced since the original was produced before the Assistant

Commissioner of IAC office, Irinjalakkuda, for the purpose of

renewing the licence for the succeeding year. The complainant Crl.M.C.No.334 OF 2021

had only a photocopy of this licence, which was not marked. In

order to produce the original lending licence, the complainant

wanted to examine the Assistant Commissioner, for which an

application was moved under Section 311 of the Cr.P.C. But, by

the impugned order, the the learned Magistrate dismissed the

petition. That order is now under challenge before this Court

under Section 482 of the Cr.P.C.

3. Though notice was served on the counsel for the first

respondent/accused, there is no representation for him.

4. Section 311 of Cr.P.C enables any court at any stage of

any enquiry, trial or other proceedings under the Code to summon

any person as a witness or recall and examine any witness already

examined if his evidence appears to be essential for a just

decision. The object underlying the provision is that there may not

be failure of justice on account of mistake of either party in

bringing valuable evidence on record or leaving ambiguity in the

statement of witnesses examined from either side. It is settled by

authorities that the determining factor is whether it is essential to Crl.M.C.No.334 OF 2021

take a just decision of the case. The Section is couched in the

widest possible terms and calls for no limitation either with regard

to the stage at which the power of the court should be exercised or

with regard to the manner in which it should be exercised. That is

why it is said that, such an application can be entertained even in

cases which stand adjourned for passing judgment. In fact the

power under Section 311 Cr.P.C is complementary to Section 165

of the Evidence Act.

5. Here it seems that, the application was filed by the

petitioner/complainant after close of prosecution evidence, to

examine the Inspecting Assistant Commissioner for the purpose

of producing the money lending licence. In the light of the

contention of the respondent that he had no capacity to lend the

money etc., such a petition cannot be branded as completely out

of place. In my reading the opinion formed by the Magistrate for

rejecting the plea is not based on sound principles of law.

6. After hearing counsel for the petitioner and perusing the

impugned order I have no doubt that, there is absolutely no harm Crl.M.C.No.334 OF 2021

in affording the complainant opportunity to summon and examine

the said witness. That would only advance the cause of justice.

Thus invoking the inherent jurisdiction of this Court under

Section 482 of the Cr.P.C the order dated 07.01.2021 is quashed.

The Crl.M.C is allowed.

Sd/-

                                               K.HARIPAL
                                                 JUDGE




      Jms



                               //True Copy//     P.A to Judge
 Crl.M.C.No.334 OF 2021





                              APPENDIX
PETITIONER'S EXHIBITS:

ANNEXURE (A)             TRUE COPY OF THE COMPLAINT DATED 27.01.2014
                         IN CC 7629/14 FILED BEFORE THE JUDICIAL
                         MAGISTRATE OF 1ST CLASS COURT AT
                         IRINJALAKUDA.

ANNEXURE B               TRUE COPY OF THE PETITION DATED 23.12.2020
                         FILED UNDER SECTION 311 OF THE CRIMINAL
                         PROCEDURE CODE BEFORE THE JUDICIAL
                         MAGISTRATE OF 1ST CLASS COURT AT
                         IRINJALAKUDA.

ANNEXURE C               TRUE COPY OF WITNESS DATED 23.12.2020 FILED

BEFORE THE JUDICIAL MAGISTRATE OF 1ST CLASS COURT AT IRINJALAKUDA.

ANNEXURE D TRUE COPY OF THE ORDER DATED 07.01.2021 IN CRL.MP 4514/2020 OF THE JUDICIAL MAGISTRATE OF 1ST CLASS COURT AT IRINJALAKUDA.

                           //True Copy//    P.A to Judge