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2019 DIGILAW 506 (MAD)

A. Balamurugan v. J. Raja Mohamed

2019-02-26

N.SESHASAYEE

body2019
JUDGMENT : (Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., praying, to call for the records of the order passed in Cr.M.P.No.93 of 2019 in S.T.C.No.249 of 2015 dated 21.01.2019, on the file of the Judicial Magistrate Court, Aruppukkottai, Virudhunagar District and set aside the same as illegal.) 1. The present petition is filed to set aside the order of the learned Judicial Magistrate, Aruppukkottai, Virudhunagar in Cr.M.P.No.93 of 2019 in S.T.C.No.249 of 2015, dated 21.01.2019, whereunder the petitioner seeks to recall the evidence of P.W.1 / defacto complainant, the respondent herein under Section 311 Cr.P.C. The said petition came to be dismissed and hence, the petitioner is before this Court. 2. The learned counsel for the petitioner submits that there are material alterations in the cheque involved in this case and the petitioner herein also denies his signature in the said cheque. According to him, the trial of the case commenced on 03.11.2018 and he cross-examined P.W.1 on 06.12.2018. Subsequently, the complainant examined P.W.2 / Bank Official on 21.12.2018, who was cross-examined on the same date and subsequently, the case stood over to 04.01.2019 for questioning under Section 313 Cr.P.C. At this juncture, the petitioner came up with the present petition. 3. The learned counsel for the petitioner argued that one of his defence is that there are material alterations with regard to the cheque and that he had earlier moved this Court in Crl.O.P.(MD)No.598 of 2016 for quashing the complaint and that came to be dismissed by this Court on 10.10.2018, with a direction to agitate the same during trial. However, due to oversight, this fact was not cross-examined and he had also some more questions on the signature in the cheque. 4. The learned counsel for the respondent would argue that the respondent had filed Crl.O.P.(MD)No.8951 of 2016 for expeditious disposal of the case in STC No.249 of 2015, which came to be ordered by this Court on 12.09.2018, fixing three months time for the trial Court to complete the trial. Subsequent to that, Crl.O.P.(MD)No.598 of 2016 filed 3 by the present petitioner came up for hearing and again this Court has given fresh three months time for disposal of the case. 5. In these circumstances, the case came up for trial on 03.11.2018, on which date, P.W.1 was examined in chief. Subsequent to that, Crl.O.P.(MD)No.598 of 2016 filed 3 by the present petitioner came up for hearing and again this Court has given fresh three months time for disposal of the case. 5. In these circumstances, the case came up for trial on 03.11.2018, on which date, P.W.1 was examined in chief. Thereafter, the case stood over to 15.11.2018, 23.11.2018 and finally on 29.11.2018, on which date, the petitioner chose not to cross-examine P.W.1. Finally, the case was posted to 06.12.2018, on which date, he was cross-examined and in his cross-examination, a suggestion was put to P.W.1 denying the signature of the petitioner in the cheque concerned. He would further submit that if at all, the petitioner wants to cross-examine on the alleged material alteration, the respondent may not have serious objection. 6. The learned counsel for the petitioner however, would submit that he has merely made a suggestion to P.W.1 denying the petitioner's signature in the cheque. 7. After weighing the rival submissions, this Court is of the view that the petitioner appears to be in a mode to gamble on the procedure. Here is the situation where the trial Court has been directed by this Court to complete the trial within three months. The petitioner goes for trial even fully aware about this direction, and yet sought three adjournments for cross-examining P.W.1. What is the line of defence is not made known prior to that, since he had not chosen to issue a reply notice to the statutory notice issued by the complainant / respondent. The submission of the learned counsel for the petitioner is that the petitioner has earlier moved this Court in Crl.O.P.(MD)No.598 of 2016 for quashing the complaint on the ground that there are material alterations in the cheque. Therefore, he knew his line of defence touching on the material alterations involved in this case. However, that precisely, was the point he did not consider it fit to cross-examine P.W.1 when he was in the box. 8. In this scenario, going through the nature of statement made on behalf of the respondent by his counsel, this Court deems it appropriate, grant one last opportunity to cross-examine P.W.1, but limiting the same to the alleged material alterations in the cheque, but not beyond the same. 9.1. 8. In this scenario, going through the nature of statement made on behalf of the respondent by his counsel, this Court deems it appropriate, grant one last opportunity to cross-examine P.W.1, but limiting the same to the alleged material alterations in the cheque, but not beyond the same. 9.1. The learned counsel for the petitioner made a fervent plea that he must also be permitted to cross-examine on the alleged disputed signature of the petitioner in the cheque. 9.2. This Court on going through the copy of the cross-examination, a cryptic one, in that this Court finds that the suggestion has been made in this aspect. Therefore, it may not be proper for him to let him cross-examine P.W.1 on an aspect on which he has exhausted his cross-examination. However, he can produce such relevant material, which are with him before the Court when his turn comes for lending evidence, if he is in turn to, since the Courts are also empowered to compare the signature as per Section 73 of the Evidence Act. 10. This petition is allowed accordingly for the purpose herein above indicated. Since both the parties appeared before this Court, the complainant is directed to appear before the Court and the petitioner is directed to cross-examine the respondent on 27.02.2019. Consequently, connected miscellaneous petition is closed.