2025:KER:18637 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946 CRL.MC NO. 8375 OF 2024 AGAINST THE ORDER DATED 05.08.2024 IN CC NO.267 OF 2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IV, PERUMBAVOOR PETITIONER/COMPLAINANT: A.C.BABY, AGED 63 YEARS S/O CHACKO, ARACKAL (H), PLAMUDY P.O, KOTTAPPADY, PIN – 686692. BY ADVS. JOSEPH KIRAN D. THEKKEKARA DAVIS PIUS JEO GEORGE MARIYA RINCY C.J. RESHMA S.MENON RESHMA R.NAIR ARUN ANTONY (K/1053/2011) SHINTO SABASTIAN RESPONDENT/ACCUSED: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2 BENNY M.V., MATTATHIL (H), MANJAPRA P.O, ERAPPU KARA, PIN – 683581. BY ADV AJEESH M UMMER PP M.C.ASHI 2025:KER:18637 CRL.MC NO. 8375 OF 2024 2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2025:KER:18637 CRL.MC NO. 8375 OF 2024 3 ORDER The petitioner is the complainant in C.C No.267 of 2019 pending on the files of the Judicial First Class Magistrate Court-IV, Perumbavoor. The complaint is filed alleging that, after borrowing Rs.2 lakhs on 18.10.2018, the 2nd respondent issued a cheque for the said amount, which on presentation was dishonored for want of sufficient funds. The 2nd respondent having failed to pay the amount despite issuance of statutory notice, the complaint was filed alleging commission of offence under Section 138 of the Negotiable Instruments Act. During trial in the case, petitioner examined the Secretary of the Kottapady Service Co-operative Bank to prove that he had withdrawn Rs.2 lakhs for payment to the 2nd respondent. Contrary to petitioner’s expectation, the witness stated that Rs.2 lakhs was not withdrawn on 18.10.2018. Thereupon, the petitioner filed an application under Section 311 of Cr.P.C to recall and re- examine the complainant/petitioner. The court below having 2025:KER:18637 CRL.MC NO. 8375 OF 2024 4 rejected the application, this Crl.M.C is filed. 2. Learned counsel for the petitioner contended that the trial court grossly erred in dismissing the application since the prayer was only to permit re-examination of the petitioner for correcting an inadvertent mistake in the complaint. It is the submission of the learned counsel that correction of inadvertent mistakes and filling up of lacuna are not the same. The trial court failed to understand the distinction and rejected the application. Reliance is placed on the decision of this Court in Sureshkumar N.S. v. K.T. Cherian @ George and Another [2012 (1) KHC 651] to contend that inadvertent and accidental mistakes can be corrected if application under Section 311 Cr.P.C is filed in time. 3. According to the learned counsel for the 2nd respondent, the mistake is not as innocuous as is attempted to be made out. It is pointed out that a careful reading of the complaint will make it evident that the date 18.10.2018 was not entered mistakenly. Therefore, the attempt to get the evidence re-opened is only to fill 2025:KER:18637 CRL.MC NO. 8375 OF 2024 5 up the lacuna in the complainant’s case. In spite of the persuasive arguments advanced by the learned counsel for the petitioner, I find no reason to interfere with the impugned order. Going by the averments in the complaint, issuance of the cheque is preceded by other incidents and therefore the date of issuance of the cheque cannot be perceived as a typographical error. As such, re-opening of evidence will pave way for correcting the date, and filling up a lacuna in the prosecution case, thereby causing prejudice to the accused in the defence of his case. The precedent relied on by the petitioner will not come to his aid since the facts therein are entirely different. For the aforementioned reasons, the Crl.M.C is dismissed. Sd/- V.G.ARUN JUDGE Sru 2025:KER:18637 CRL.MC NO. 8375 OF 2024 6 APPENDIX OF CRL.MC 8375/2024 PETITIONER’S ANNEXURES Annexure A1 A TRUE COPY OF THE COMPLAINT Annexure A2 A TRUE COPY OF THE DISMISSAL ORDER PASSED BY LD MAGISTRATE COURT Annexure A3 A TRUE COPY OF THE AGREEMENT OF AN OVERDRAFT ACCOUNT MAINTAINED BY THE PETITIONER WITH THE BANK Annexure A4 A TRUE COPY OF THE ACCOUNT STATEMENT OF THE PETITIONER