Petitioner in this case is the mother of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The said complainant is not available in India and is working abroad. A power of attorney holder of the complainant has been examined as a witness(PW1) on the side of the complainant. Such power of attorney holder in the course of evidence tendered by him, had stated that the accused has his house near the house of the mother of the complainant, i.e. the petitioner herein. The accused has a case that he has nothing to do with the complainant and that the complainant is a total stranger to him. It is in that context that the power of attorney(witness) was cross examined and the witness gave the answer that the complainants mother has her house at Karthikappally and the house of the accused is near the said house of the petitioner herein.

2. On the basis of the said statement of PW1, the accused filed an application that the petitioner, i.e., the mother of the complainant, be examined as a defence witness. That prayer was allowed by the learned Magistrate and summons was issued to the petitioner. The petitioner in these circumstances went to the Magistrate through counsel and prayed that she being sick and infirm, may be exempted from appearance and may not be compelled to appear. That prayer was rejected by the learned Magistrate by the impugned order. It is in these circumstances that the petitioner has come to this Court with this petition under Section 482 Cr.P.C, requesting this Court to invoke the extraordinary jurisdiction to ensure that she is not vexed and harassed by unnecessary insistence of her appearance before the court as a witness.

3. The respondent accused has entered appearance. Arguments have been heard. The complainant has not been arrayed as an accused, but she is the mother of the petitioner. I am satisfied that the said inadequacy can be ignored.

4. The right of the accused to examine a defence witnesses in a summons trial is stipulated in Section 254(2) Cr.P.C. It reads as follows:

"254 (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing." (emphasis supplied)

5. There is an effective discretion conferred on the Magistrate in the matter. Only if the Magistrate thinks it fit, the Magistrate can and need issue summons to a witness on the application filed by the accused. The right of the accused for reasonable opportunity to defend himself in indictment is very valuable and must be taken into account. But, at the same time, the Magistrate have to ensure that such right is not invoked to cause harassment to the complainant or the witnesses sought to be summoned. If the Court is satisfied that the examination of the witness is in any way relevant and necessary for the purpose of setting up the defence of the accused, such prayer shall not be turned out ordinarily. Only when the court is satisfied that the prayer to summon a witness is unjustified or is calculated to cause vexation and harassment to the witness or the complainant or is calculated to prolong or protract the proceedings shall a court exercise the discretion under Section 254(2) against an accused person.

6. That leads me to the question as to what is the purpose of examination of the petitioner as a defence witness in this prosecution launched by her son against the respondent accused.

7. The prosecution is under Section 138 of the Negotiable Instruments Act. The accused raises the contention that he has no connection whatsoever with the complainant. In the light of this defence, the power of attorney holder was cross examined and he stated that the house of the mother of the complainant is at Karthikappally and that the house of the accused is also near to such house. This is the only reason on which the petitioner is sought to be examined as a defence witness. There is