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2009 DIGILAW 2834 (MAD)

S. Ramaiah v. Anjenayan

2009-07-30

G.RAJASURIA

body2009
Judgment : Challenging and impugning the judgment dated 15.7.2006 passed by the Judicial Magistrate, Sholingar, Vellore District, in Crl.M.P.No.876 of 2006, this criminal revision case is focussed. 2. compendiously and concisely the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus: The respondent herein filed the complaint as against the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act. It so happened that at the first instance itself cross-examination of P.Ws.1 and 2 were not conducted, at the instance of the accused. It seems, subsequently, the accused filed application to recall P.W.2 and got him cross-examined. Thereafter,another application Crl.M.P.No.876 of 2006 was filed to recall P.W.1, so as to cross-examine him. In that connection, the learned Magistrate observed to the effect that even before getting recalled P.W.2, the accused could have got P.W.1 recalled and cross-examined and that there were latches on the part of the accused in co-operating with the Court for speedy disposal and accordingly dismissed the application. 3. Animadverting upon such order of the Magistrate, this revision is focussed on various grounds, the pith and marrow of them would be to the effect that due opportunity was not given to the accused to torpedo the case of the complainant. Section 311 of Cr.P.C. could be invoked by the accused at any stage of the proceedings and in the interest of justice, the Court could have allowed the Crl.M.P. 4. Despite printing the name of the respondent's counsel none appeared. However, the learned counsel for the revision petitioner would implore and entreat that one more opportunity could be given to the accused to cross-examine P.W.1, as without cross-examining P.W.1, the defence of the accused would be prejudiced. 5. At this juncture, I would like to point out that undoubtedly there are some laches on the part of the accused in getting P.W.1 recalled and cross-examined. To that much extent, the Magistrate was right in his observation. However, in the interest of Audi alteram partem, cross-examination of P.W.1 is an absolute necessity, and more especially, in a criminal case. If the principal witness's (P.W.1) chief-examination is left as such, it would amount to accused admitting the very case of the complainant and it would obviously result in his conviction. However, in the interest of Audi alteram partem, cross-examination of P.W.1 is an absolute necessity, and more especially, in a criminal case. If the principal witness's (P.W.1) chief-examination is left as such, it would amount to accused admitting the very case of the complainant and it would obviously result in his conviction. Simply because there are some laches on the part of the accused, the Magistrate was not justified in totally depriving him of his valuable right to get cross-examined P.W.1. Ofcourse, the Magistrate could have imposed some cost in order to compensate the complainant. It appears, the Magistrate took a draconian view of the matter and fell into error, warranting interference by this Court. 6. Accordingly, I would like to set aside the order of the Magistrate and allow the Crl.M.P.No.876 of 2006 subject to the condition that within 15 days from the date of receipt of a copy of this order, the revision petitioner shall pay a cost of Rs.500/-(rupees five hundred) to the complainant directly, and whereupon, the trial Court shall give an opportunity to the accused to cross-examine P.W.1 and see that the entire case is disposed of within three months from the date of receipt of copy of this order. In the result, the criminal revision case is allowed.