Madras High Court
Ramachandran vs Periyasamy on 8 March, 2022
Crl.O.P.No.5234 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2022
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.5234 of 2022
and
Crl.M.P.No.2830 of 2022
Ramachandran ... Petitioner
Vs
Periyasamy ... Respondent
PRAYER: This Criminal Original Petition filed under Section 482 Cr.P.C.,
pleased to set aside the order dated 28.12.2021 passed in C.M.P.No.2240/2021
in C.C.No.233 of 2018 on the file of the Judicial Magistrate, Fast Track Court,
Kallakkurichi and allow the Criminal Original Petition in to recall the PW1
Periyasamy for further cross examination.
For Petitioner : Mr.R.Bharath Kumar
For Respondent : No Appearance
ORDER
The Criminal Original Petition has been filed to set aside the order dated
28.12.2021 passed in C.M.P.No.2240/2021 in C.C.No.233 of 2018 on the file of
the Judicial Magistrate, Fast Track Court, Kallakurichi and to recall the PW1
Periyasamy for further cross examination.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5234 of 2022
2. Brief facts of the case is that the petitioner is an accused in C.C.No.233
of 2016 pending on the file of Judicial Magistrate, Fast Track Court,
Kallakurichi for the offence under Section 138 of Negotiable Instruments Act.
The petitioner had filed an application in C.M.P.No.2240 of 2021, seeking to
recall PW1 in order to assess about his income and to revert the presumptions
about financial capacity of PW1. The respondent had filed a counter stating that
the complaint was filed in the year 2015 and it was pending for more than 7
years. PW1 was cross examined in all aspects and on a previous occasion,
petition to recall PW1 was allowed and thereafter, the case has been posted for
arguments and after arguments, the case was reserved for judgment. At that
stage, the petition to recall PW1 for cross examination was filed. The trial Court
had dismissed the same, against which the present petition has been filed.
3. Learned counsel for the petitioner would submit that the
petitioner is facing trial for the offence under Section 138 of Negotiable
Instruments Act in C.C.No.233 of 2016 on the file of the Judicial Magistrate,
Fast Track Court, Kallakurichi. The petitioner had filed an application in
C.M.P.No.2240 of 2021, seeking to recall PW1 for further cross examination
with regard to his financial capacity. However, the Trial Court, without taking
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5234 of 2022
into consideration the necessity, had dismissed the application, against which
the present petition has been filed.
4. Heard the learned counsel appearing for the petitioner and perused the
materials available on record including the impugned order.
5. In this case, PW1 had been examined in chief on 17.12.2015 and the
trial Court had granted time till 23.09.2016, for cross examination of PW1.
Thereafter, the petitioner had absented himself and bailable warrant was issued
on 20.10.2016. The petitioner/accused had surrendered on 11.11.2016 and the
bailable warrant had been recalled. Thereafter, the Trial Court had granted
further time for cross examination of PW1 till 25.05.2017 and once again, the
petitioner/Accused had not appeared and thereby, bailable warrant was issued
against the accused/petitioner on 12.06.2017. The petitioner had surrendered on
16.08.2021 and the bailable warrant was recalled. The petitioner/accused had
failed to cross examine PW1 and the evidence of PW1 was closed on
01.02.2018 without cross examination.
6. The petitioner had earlier filed C.M.P.No.549 of 2019 for recalling
PW1 and the petition was allowed and the case was posted for cross
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5234 of 2022
examination on 07.09.2019. Thereafter, the case was posted to 16.09.2019 and
PW1 was cross examined in part and finally the cross examination of PW1 was
completed on 28.11.2019. Subsequently, after Covid-19 pandemic period, the
petitioner had filed a petition under Section 311 of Cr.P.C. and reopened the
case for defence evidence and the same was allowed by the trial Court. The
petitioner/accused had examined himself as RW1 on 04.10.2021, thereafter,
RW2 was examined on 10.11.2021. The trial Court had granted further time to
both counsel and posted the matter for judgment. At that time, the present
petition had been filed by the petitioner/accused seeking to recall PW1 once
again for further cross examination. The Trial Court further finding that the
petitioner had cross examined PW1 at length on 16.09.2019 and also going
through the deposition, has found that the petitioner had cross examined PW1
relating to the financial capacity had dismissed the petition, stating that there is
no merits in this case.
7. This Court also perused the records and the deposition filed along with
this petition and found that sufficient time had been given by the trial Court and
the petitioner had also cross examined PW1 with regard to the financial
capacity. In such circumstances, the petition to recall PW1 for further cross
examination is nothing but an abuse of process of law only in order to prolong
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Crl.O.P.No.5234 of 2022
the proceedings. This Court does not find any infirmity in the orders passed by
the learned trial Judge.
8. In view of the above, the Criminal Original Petition stands dismissed.
Consequently, the connected miscellaneous petition is closed.
08.03.2022
Index :Yes/No
Internet:Yes/No
ham/rgi
To
1. The Judicial Magistrate,
Fast Track Court, Kallakurichi
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5234 of 2022
A.D.JAGADISH CHANDIRA,J.
ham/rgi
Crl.O.P.No.5234 of 2022
and Crl.M.P.No.2830 of 2022
08.03.2022
https://www.mhc.tn.gov.in/judis
