B. Suresh Rai vs Joboy Thomson and State of Kerala

Thomas P. Joseph, J.—First Respondent has received notice but there is no response. Learned Public Prosecutor takes notice for second Respondent.

Challenge in this proceeding is to Annexure-IV, order dated February 22, 2011 on C.M.P. No. 2002 of 2010 in S.T. No. 1616 of 2006 of the Court of learned Judicial First Class Magistrate-II, Pala. Petitioner faced trial for offence punishable u/s 138 of the Negotiable Instruments Act. There were attempts to settle the matter outside Court and a request was made in that behalf by both sides on 06.08.2010. Learned Magistrate adjourned the case to 21.08.2010 for settlement. On that day petitioner sought further time for settlement but that was rejected, document produced along with the proof affidavit of first respondent was marked and since counsel for petitioner was not ready to cross examine the first respondent, evidence was closed. Petitioner was questioned u/s 313 of the Code of Criminal Procedure (for short, "the Code") on 26.08.2010 and the case was posted for defence evidence to 25.11.2010. Since it was submitted that there is no defence evidence the case was finally posted to 14.12.2010. On 14.12.2010 petitioner filed C.M.P. No. 2002 of 2010 to recall first Respondent/PW1 invoking Section 311 of the Code. That application was objected by the counsel for first respondent (Annexure-III is the objection) stating that petitioner was obtaining time on the ground of settlement of the case, first respondent was examined on 21.08.2010 and after closing the evidence the case was posted on 21.08.2010. It is also stated in Annexure-III, objection that on that day the Court had told petitioner that since first respondent had to go abroad, petitioner has to take steps to cross examine first respondent, if it is so required before 26.08.2010. But, that also was not done.

Learned Counsel submitted that learned Magistrate has allowed the application for recall on condition of payment of cost of Rs. 1,00,000/- being the expenses for first respondent to come to his native place from abroad. According to the learned Counsel, learned Magistrate was not correct in directing payment of cost and at any rate Rs. 1,00,000/-.

It is not as if petitioner did not get sufficient opportunity to cross examine first respondent. Documents of first respondent referred to in the proof affidavit were marked on 21.08.2010 and it was only on 14.12.2010 that petitioner thought of filing an application to recall the first respondent. That was at a time when first respondent had already gone abroad. In such circumstances, it is too much to ask the first respondent to suffer all the expenses and come to the Court from abroad to facilitate his cross examination by the petitioner. If petitioner could not cross examine the first respondent, it is the fault of nobody else but petitioner himself. In that circumstances I do not find reason to interfere with the impugned order.

Learned Counsel submitted that petitioner is prepared to settle the case, if some time is given. Though, four months'' time is requested, having regard to the fact that even on prior occasions petitioner was given opportunity to settle the case, I am not inclined to grant that much time, but having regard to circumstances stated by learned Counsel including the difficulty of petitioner to raise necessary funds, I am inclined to grant two months'' time to the petitioner to settle the dispute with the first respondent. For that purpose, it is directed that further proceeding in S.T. No. 1616 of 2006 will stand in abeyance for a period of two months from this day.

Resultantly this criminal miscellaneous case is dismissed. It is directed that further proceeding in S.T. No. 1616 of 2006 of the Court of learned Judicial First Class Magistrate-II, Pala will stand in abeyance for a period of two months from this day. It is open to the petitioner to settle the case with the first respondent during the said period of two months and report that matter to the learned Magistrate with proper application to compound the offence. If the matter is not settled and no application for compounding is preferred during the said period of two months it will be open to the learned Magistrate to proceed with the case pursuant to the order under challenge.