Madras High Court
Balasundaram vs Subburayan on 14 October, 2022
Crl.O.P. No.24909 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.10.2022
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
CRL.O.P No.24909 of 2022 and
Crl.M.P.No.15583 of 2022
Balasundaram ... Petitioner
Vs.
Subburayan ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to set aside the order passed in Crl.M.P.No.309/2022 dated
06.10.2022 in C.C.No.671/2020 on the file of the Judicial Magistrate-1,
Namakkal.
For Petitioner : Mr.S.Sheik Ismail
ORDER
Challenging the order passed in Crl.M.P.No.309/2022 in
C.C.No.671/2020 dated 06.10.2022 by the Judicial Magistrate-1, Namakkal,
this Criminal Original Petition has been filed.
2. The learned counsel for the petitioner submitted that the petitioner
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.24909 of 2022
was prosecuted by the respondent/complainant for the offence punishable
under Section 138 of Negotiable Instruments Act and he filed an application
before the Trial Court to recall the PW1/complainant for further cross
examination, and it was dismissed. He further submitted that, fair chance
has to be given to the petitioner to cross examine the PW1 to elucidate
certain crucial points i.e., under what circumstances and for what purpose
the cheque was issued and whether consideration has been transferred or
not. Therefore, for the above said purpose, it is necessary to recall the PW1/
complainant and for the same, the impugned order has to be set aside.
3. A perusal of the records shows that the petitioner is the sole
respondent/accused in C.C.No.671 of 2020 on the file of the Judicial
Magistrate-1, Namakkal and the respondent has prosecuted the petitioner
for the offence punishable under Section 138 of Negotiable Instruments Act.
During the course of Trial, initially, the petitioner has not cross examined
the PW1. Subsequently, the petitioner had filed a petition in CMP
No.884/2022 to recall the PW1/Complainant and to cross examine him. The
above petition was allowed by the Trial Court on 19.04.2022 and thereafter,
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.24909 of 2022
the case was periodically adjourned from 23.04.2022 to 28.06.2022.
However, on all these hearings, the petitioner has not cross examined the
PW1. Hence, on 28.06.2022, Cross examination of PW1 was closed and the
case was posted for defence side witness on 08.07.2022. On that day, again
the petitioner had filed a petition in CMP No.1974/2022 to cross examine
the PW1 and it was also allowed by the Trial Court on 22.07.2022.
Thereafter, the petitioner cross examined the PW1 on 04.08.2022 and
16.08.2022 and the cross examination of PW1 was closed on 16.08.2022.
Thereafter, the case was posted for defence side witness on 05.09.2022,
however, since there was no representation on the side of the accused,
defence side evidence was closed on 08.09.2022 and posted for argument on
13.09.2022. In such circumstances, the petitioner once again filed a petition
to recall PW1. The Trial Court, dismissed the petition mainly on the ground
that already fair chances have been given to the petitioner on many
occasions to cross examine the PW1 and further, already the recall petitions
were allowed on two occassions and the petitioner has also cross examined
the complainant and there is no valid reason put forth to recall the PW1
once again. Therefore, this Court is of the view that after giving fair chances
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.24909 of 2022
to the petitioner and by considering all the facts, the Trial Court has
discussed the matter elaborately and has passed the reasoning order and
hence, the same does not warrant any interference by this Court.
4. At this juncture, the learned counsel for the petitioner submitted
that the case is posted today (14.10.2022) for judgment and hence the
petitioner may be permitted to put forth his argument before the Trial Court
on 17.10.2022.
5. Considering the request of the learned counsel for the petitioner,
the Trial Court is directed permit the counsel for the petitioner to putforth
his submissions on 17.10.2022.
6. With the above direction, this Criminal Original petition is
dismissed. consequently, connected miscellaneous petition is closed.
14.10.2022
Note: Issue order copy on 14.10.2022
mst
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.24909 of 2022
To
The Judicial Magistrate-I,
Namakkal.
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.24909 of 2022
V.SIVAGNANAM, J.
mst
CRL.O.P No.24909 of 2022
14.10.2022
https://www.mhc.tn.gov.in/judis
