Madras High Court
Josva Rajasekar vs State Rep By on 16 November, 2021
Crl.O.P.No.24640 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2022
PRONOUNCED ON : 12.01.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.24640 of 2021
Josva Rajasekar ... Petitioner
Versus
State rep by:
Inspector of Police,
CBCID Kancheepuram Police Station,
Kancheepuram.
(Crime No.10 of 2007) ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to set aside order made in Crl.M.P.No.6609 of 2021 in
Spl.C.C.No.2 of 2009, dated 16.11.2021 passed by the Special Judge/Chief
Judicial Magistrate, Kancheepuram District at Chengalpattu.
For Petitioner : Mr.N.R.Elango, Senior Counsel for
Mr.L.Ramu
For Respondent : Mr.E.Raj Thilak,
Additional Public Prosecutor
*****
ORDER
This Criminal Original Petition has been filed to set aside, order made in
Crl.M.P.No.6609 of 2021 in Special C.C.No.2 of 2009, dated 16.11.2021
passed by the Special Judge/Chief Judicial Magistrate, Kancheepuram District
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Crl.O.P.No.24640 of 2021
at Chengalpattu.
2.The learned Senior Counsel appearing for the petitioner submitted that
during trial, PW1-Daisy Anandraj was examined on 02.12.2016 and the
Advocate in the trial Court failed to cross examine PW1 with regard to
important aspects of the fact. PW1 and her husband were facing criminal
cases all over the State of Tamil Nadu. One such case was pending before the
learned Judicial Magistrate, Muthukalathur against PW1/the defacto
complainant herein. PW1 herein entered into agreement for settlement and
filed Crl.M.P.No.5066 of 2006 before the learned Judicial Magistrate,
Muthukalathur. The allegation is that A1 and the petitioner/A2 sold the
property belonging to the defacto complainant and failed to deposit the same
as per the order in Crl.M.P.No.5066 of 2006, which led to filing of the present
case in Special C.C.No.2 of 2009. Thereafter, a petition has been filed before
this Court to set aside the order made in Crl.M.P.No.5066 of 2006. When
these aspects were put to PW18/Investigating Officer, he answered that he is
not aware about the compromise and does not know the result of the said
petition in Crl.M.P.No.5066 of 2006. In view of the same, further cross
examination of PW1 is necessary.
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Crl.O.P.No.24640 of 2021
3.The learned Senior Counsel further submitted that PW1 as well as
PW18/Investigating officer are silent and suppressing the truth and hence,
further cross examination of PW1 is necessary. The petitioner/A2 after such
answer of PW18, he immediately filed a petition under Section 311 Cr.P.C., in
Crl.M.P.No.6609 of 2021 in Special C.C.No.2 of 2009 to recall PW1. The
trial Court without considering this important aspect, dismissed the petition on
the ground that the petition is filed after lapse of 5 years. It is not the number
of years, it is the purpose and importance of the witness to be seen. Since the
petitioners are facing charges under the Prevention of Corruption Act, the
presumption is against them. Assailing these points, the learned Senior
Counsel submitted that unless PW1 is recalled for further cross examination,
great prejudice would be caused to the petitioner.
4.The learned Additional Public Prosecutor appearing for the respondent
strongly objected this petition for recalling PW1 and submitted that the
pendency of the case against PW1 before the learned Judicial Magistrate,
Muthukalathur would no way affect the present trial. A settlement was arrived
in that case between PW1-Deisy Anandraj and the accused. Thereafter, they
filed a petition in Crl.M.P.No.5066 of 2006 before the learned Judicial
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Crl.O.P.No.24640 of 2021
Magistrate, Muthukalathur and filed compromise affidavit and an order came
to be passed by the learned Magistrate. Thereafter, A1 and A2 herein failed to
deposit the amount before the Court as per the order in Crl.M.P.No.5066 of
2006. In this case, A1 died on 09.08.2020. He further submitted that PW1
sent a representation to the Superintendent of Police, Kancheepuram,
complaining about the misappropriation and cheating committed using the
power of attorney by A1 and A2 in disposing PW1's property. The accused
herein sold the property and failed to deposit the sale deeds and thereby,
misappropriated and cheated the creditors. Hence, as per the direction of the
Superintendent of Police, Kancheepuram, FIR in Crime No.10 of 2002 came to
be registered, for offence under Sections 406, 409, 420 IPC. On the orders of
the Director General of Police, the above case in Crime No.10 of 2021 was
transferred to the file of the respondent Police.
5.It is further submitted that A3 in this case is the Inspector of Police,
DCB Ramnad District. The trial in Crime No.1 of 2006 is pending before the
learned Judicial Magistrate, Muthukalathur. PW1 is an accused in that case.
A3 took the police custody of PW1 and made arrangement to settle the issue
and got the power of attorney executed. On the strength of the same, the
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Crl.O.P.No.24640 of 2021
accused sold the property of PW1 and misappropriated the amount. Now, the
petitioner claiming that some important aspect have been left over and that has
to be necessarily put before PW1, cannot be accepted. Further, PW1 has been
earlier cross examined on these aspects. Hence, he strongly opposed this
petition.
6.This Court considered the rival submissions and perused the materials
available on record.
7.The above case in Crime No.10 of 2007 came to be registered based
on the complaint of PW1 against A1 and A2. During investigation, it was
found that A3/Inspector of Police, DCB Ramnad District, Ramnad, who is the
the Investigating Officer in Crime No.1 of 2006, had conspired with the other
accused and not complied with the order of the learned Judicial Magistrate,
Muthukalathur in Crl.M.P.No.5006 of 2006. Taking advantage of the order,
the accused had conspired together and cheated PW1 and misappropriated
huge sums of money. Further, the commission of offence attracted provisions
of the Prevention of Corruption Act. Now, the case is at the penultimate stage
and the case is posted for pronouncing judgment by the trial Court.
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Crl.O.P.No.24640 of 2021
8.Admittedly, PW1 was examined on 02.12.2016 and thereafter, other
witnesses examined and the accused were questioned under Section 313
Cr.P.C., and now, the case is posted for pronouncing judgment. At this stage,
without proper reason, the present petition has been filed. Added to it, PW1
had been cross examined in these aspects earlier. Hence, the present petition is
without any plausible reasons.
9.In view of the above, this Court is of the view that filing of this
Criminal Original Petition is nothing but to further protract the trial. Hence,
this Court is not inclined to set aside the order of the trial Court and the same
is hereby confirmed. Accordingly, this Criminal Original Petition stands
dismissed.
12.01.2022
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
1.The Special Judge/Chief Judicial Magistrate,
Kancheepuram District at Chengalpattu.
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Crl.O.P.No.24640 of 2021
2.The Inspector of Police,
CBCID Kancheepuram Police Station,
Kancheepuram.
3.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.24640 of 2021
M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY ORDER IN
Crl.O.P.No.24640 of 2021
12.01.2022
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