K.Shihabuddeen Vs. Musthafa Haji - Court Judgment

SooperKanoon Citationsooperkanoon.com/1122955
CourtKerala High Court
Decided OnJan-01-2014
JudgeHONOURABLE MR. JUSTICE A.HARIPRASAD
AppellantK.Shihabuddeen
RespondentMusthafa Haji
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice a.hariprasad wednesday, the1t day of january201411th pousha, 1935 crl.mc.no. 1368 of 2012 () --------------------------- (against the order in cmp.no. 2702/2011 in cc.no.2/08 of judicial first class magistrate court, mattannur dated2207-2011) -------------------------------------- petitioner/accused: -------------------------------------- k.shihabuddin, s/o abdulla, kadan house, aneeza manzil, aralam p.o, kannur. by advs.sri.c.m.nazar sri.mansoor.b.h. respondents/complainant/state: -------------------------------------------------------------- 1. k.musthafa haji,s/o mammu haji, badariya manzil, edayannur amsom, chalode, kannur- 670 014.2. state of kerala, rep. by public prosecutor, high court of kerala. r1 by advs. sri.c.khalid smt.p.vandana sri.adeep anwar sri.phijo pradeesh philip r2 by public prosecutor sri.reji joseph this criminal misc. case having been finally heard on0101-2014, the court on the same day passed the following: sts crmc.no.1368/2012 appendix petitioner(s) annexures: annexure a: atrue copyof the reply notice dated2310.2007. annexure b: a true copy of the deposition of pwi in cc22008 of jfm mattannur. annexure c: a true copy of petition filed under section311of crpc by the accused. annexure d: a true copy of the counter filed by the complainant to311petition. annexure e: a ture copy of the order dated227.2011 in cmp27022011 in cc22008 of jfm mattannur. respondents' annexures: nil /true copy/ p.a.to.judge sts a.hariprasad, j.------------------------------------------------ crl.m.c.no.1368 of 2012 ------------------------------------------------ dated this the 1st day of january, 2014. order petitioner is the accused in c.c no.2/2008 on the file of judicial first class magistrate, mattannur. he is charged with an offence punishable under section 138 of negotiable instruments act. the case in the complaint is that the petitioner/accused borrowed money from the complainant and issued the disputed cheque in discharge of that liability. when the cheque was presented for collection, it was dishonoured due to insufficiency of funds. after sending statutory notice, the complaint was filed before the court below. learned counsel for the petitioner drew attention of this court to annexure a, the reply notice, wherein a specific dispute regarding lack of any previous acquaintance between the complainant and the accused was raised. according to the petitioner there was no dealing between the complainant and the accused. annexure b is the copy of the deposition of pw1, who is the complainant. at the time of cross examination, specific questions were put regardingly the identity of the accused as he was not crl.m.c.no.1368 of 2012 2 present in court at the time of cross examination. it is seen from annexure b that two photographs were shown to the complainant during cross examination and initially he failed to identify the accused from among the persons seen on the photographs. learned counsel for the petitioner submitted that the cross examination could not be completed during the morning session and it was deferred after lunch. thereafter, the witness was further cross examined and in re-examination the complainant hesitantly identified the accused from one of the photographs. therefore, the petitioner produced annexure c petition under section 311 cr.p.c. learned magistrate passed an order in that matter which is annexure e. petitioner is aggrieved by the directions passed by the magistrate in annexure e that the accused shall be present on the next hearing date during the further examination of the complainant. according to the learned counsel for the petitioner this is a case wherein any previous acquaintance between the complainant and the accused is disputed. it will cause prejudice to the accused if he is directed to appear when the complainant is called for further examination. crl.m.c.no.1368 of 2012 3 2. heard the learned counsel for the complainant/ respondent. according to the learned counsel for the complainant, the accused was last seen by the complainant in 2007 and that is why he could not properly identify the accused when examined on 2-2-2010. however, considering the defence taken in this matter, i find that the magistrate ought not have directed the petitioner/accused to appear at the time when the complainant is examined, considering the peculiar nature of the case. it is for the complainant to discharge his duty of establishing the identity of the accused, especially when there is a challenge regarding any transaction and previous acquaintance. therefore, that part of the impugned order directing the accused to appear before the trial court at the time of further examination of the complainant is set aside. to this extent this petition is allowed. all interlocutory applications will stand dismissed. sd/- a.hariprasad, judge. //true copy// p.ato judge amk
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE1T DAY OF JANUARY201411TH POUSHA, 1935 Crl.MC.No. 1368 of 2012 () --------------------------- (AGAINST THE ORDER

IN CMP.NO. 2702/2011 IN CC.NO.2/08 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR DATED2207-2011) -------------------------------------- PETITIONER/ACCUSED: -------------------------------------- K.SHIHABUDDIN, S/O ABDULLA, KADAN HOUSE, ANEEZA MANZIL, ARALAM P.O, KANNUR. BY ADVS.SRI.C.M.NAZAR SRI.MANSOOR.B.H. RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------------- 1. K.MUSTHAFA HAJI,S/O MAMMU HAJI, BADARIYA MANZIL, EDAYANNUR AMSOM, CHALODE, KANNUR- 670 014.

2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. SRI.C.KHALID SMT.P.VANDANA SRI.ADEEP ANWAR SRI.PHIJO PRADEESH PHILIP R2 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON0101-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1368/2012 APPENDIX PETITIONER(S) ANNEXURES: ANNEXURE A: ATRUE COPYOF THE REPLY NOTICE DATED2310.2007. ANNEXURE B: A TRUE COPY OF THE DEPOSITION OF PWI IN CC22008 OF JFM MATTANNUR. ANNEXURE C: A TRUE COPY OF PETITION FILED UNDER SECTION311OF CRPC BY THE ACCUSED. ANNEXURE D: A TRUE COPY OF THE COUNTER FILED BY THE COMPLAINANT TO311PETITION. ANNEXURE E: A TURE COPY OF THE ORDER

DATED227.2011 IN CMP27022011 IN CC22008 OF JFM MATTANNUR. RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts A.HARIPRASAD, J.

------------------------------------------------ Crl.M.C.No.1368 of 2012 ------------------------------------------------ Dated this the 1st day of January, 2014. ORDER

Petitioner is the accused in C.C No.2/2008 on the file of Judicial First Class Magistrate, Mattannur. He is charged with an offence punishable under Section 138 of Negotiable Instruments Act. The case in the complaint is that the petitioner/accused borrowed money from the complainant and issued the disputed cheque in discharge of that liability. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds. After sending statutory notice, the complaint was filed before the court below. Learned counsel for the petitioner drew attention of this court to Annexure A, the reply notice, wherein a specific dispute regarding lack of any previous acquaintance between the complainant and the accused was raised. According to the petitioner there was no dealing between the complainant and the accused. Annexure B is the copy of the deposition of PW1, who is the complainant. At the time of cross examination, specific questions were put regardingly the identity of the accused as he was not Crl.M.C.No.1368 of 2012 2 present in court at the time of cross examination. It is seen from Annexure B that two photographs were shown to the complainant during cross examination and initially he failed to identify the accused from among the persons seen on the photographs. Learned counsel for the petitioner submitted that the cross examination could not be completed during the morning session and it was deferred after lunch. Thereafter, the witness was further cross examined and in re-examination the complainant hesitantly identified the accused from one of the photographs. Therefore, the petitioner produced Annexure C petition under Section 311 Cr.P.C. Learned Magistrate passed an order in that matter which is Annexure E. Petitioner is aggrieved by the directions passed by the Magistrate in Annexure E that the accused shall be present on the next hearing date during the further examination of the complainant. According to the learned counsel for the petitioner this is a case wherein any previous acquaintance between the complainant and the accused is disputed. It will cause prejudice to the accused if he is directed to appear when the complainant is called for further examination. Crl.M.C.No.1368 of 2012 3 2. Heard the learned counsel for the complainant/ respondent. According to the learned counsel for the complainant, the accused was last seen by the complainant in 2007 and that is why he could not properly identify the accused when examined on 2-2-2010. However, considering the defence taken in this matter, I find that the Magistrate ought not have directed the petitioner/accused to appear at the time when the complainant is examined, considering the peculiar nature of the case. It is for the complainant to discharge his duty of establishing the identity of the accused, especially when there is a challenge regarding any transaction and previous acquaintance. Therefore, that part of the impugned order directing the accused to appear before the trial court at the time of further examination of the complainant is set aside. To this extent this petition is allowed. All interlocutory applications will stand dismissed. Sd/- A.HARIPRASAD, JUDGE. //True Copy// P.Ato Judge amk