ORDER

Dated this the 13th day of May, 2022 This petition is filed challenging an order passed on

10.02.2022 by Judicial First Class Magistrate Court-II (Munsiff), Payyannur (for short ‘the court below’) in CMP No.1422/2021 in STC No. 128/2019.

2. STC No.128/2019 is a prosecution launched by the petitioner under Section 142 of the Negotiable Instruments Act, 1881 (for short the N.I.Act) alleging commission of an offence punishable under Section 138 N.I.Act by the 2nd respondent. CMP No.1422/2021 was an application filed under Section 311 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking to recall and re-examine the complainant for the purpose of marking certain additional documents produced after concluding examination of the complainant as PW1. The trial court has dismissed the application for reasons extracted hereunder:

“It is evident from the documents furnished by the complainant that it goes back to the period from 20th April 2011 to 20th August 2011. It is further evident from the deposition of PW1 in the cross examination that there were suggestion by the counsel for the accused as to non production of bills. Hence it is crystal clear that the documents are produced to fill up the lacuna evidenced in the cross examination. The base of the case of the complainant in the transaction with the accused in building materials like steel, cement. The complainant ought to have filed the bills along with the complaint. The complainant has not even produced them during his examination as PW1. The explanation offered by the PW1 in the cross examination for the non production of bills is that he had entrusted them with his counsel. This is a common bare justification having little truth in it. Hence the version of the complainant is not believable. Moreover the documents furnished for marking through recalling the witness are the bills issued by the firm Cherupushpam Traders, Padiyottuchal. The complainant has no case that his business firm is Cherupushpam Traders. PW1 has not produced other documents to show that his firm is in the name and style Cherupushpam Traders. If it were true, the petitioner could have produced the license issued by the local self government Institution. Hence the contention that the documents proposed to be furnished are not related to alleged transaction has also reason to accept. Further, the documents proposed to be marked are not certified by the person who issued them. For the above reasons, it cannot be found that the documents proposed to be marked through the witness after recalling him are essential for the just decision or the matter in question. For the above reasons the petition stands dismissed. No cost.”

3. The contention of Sri.Akshay R., the learned counsel for the petitioner was that the court below went wrong in dismissing the application. According to him, the complainant was examined as PW1 on 13.02.2021 and when the case was posted for further evidence to 14.12.2021, additional documents had been produced by the complainant. Certain documents were further produced on 16.12.2021. Reception of those documents in evidence was opposed by the accused. Therefore, CMP No.1422/2021 was filed by the complainant under Section 311 Cr.P.C. on 22.12.2021 seeking to recall PW1. By it’s order dated 10.02.2022, the trial court dismissed CMP No.1422/2021, copy of which is produced alongwith the petition on hand. It is stated therein that after examination of the complainant certain documents were produced to substantiate his case. Since the counsel for the accused filed objections, recalling and re-examining of PW1 was found necessary and accordingly CMP was filed.

4. The counsel for the accused filed his objections to the said application. It was contended that additional documents produced are only carbon copies of documents and by the production of those the complainant only intends to fill up the lacuna in the case set up by the defence. According to him additional documents being p