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Telangana High Court · body

2020 DIGILAW 356 (TS)

K. Kumaraswamy v. State of ACB

2020-03-08

G.SRI DEVI

body2020
ORDER : 1. The present Criminal Petition is filed by the petitioner/Accused, Officer, under Section 482 of Cr.P.C. seeking, to quash the order, dated 05.11.2019 passed in Crl. M.P. No. 529 of 2019 in C.C. No. 36 of 2015 on the file of the Special Judge under the Prevention of Corruption Act for Speedy Trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc. Nampally, Hyderabad, wherein and whereunder, the petition filed under Section 311 of Cr.P.C. to recall PWs. 1 and 2 for further cross-examination was dismissed. 2. The averments in the petition would show that the petitioner/Accused Officer was charged for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. It is stated that previously the petitioner had engaged one Sharma, Senior Advocate from Khammam, to defend his case and he conducted cross-examination of PWs. 1 and 2 and later he died-pending further trial. Thereafter, the petitioner/Accused Officer engaged another Counsel to defend his case. Recently, it came to the knowledge of the petitioner that due to oversight, his previous Counsel had omitted to elicit material and crucial information with regard to this case apart from failing to put defence version to PWs. 1 and 2 during their cross-examination. As such, the petitioner/Accused Officer filed Crl. M.P. No. 529 of 2019, under Section 311 Cr.P.C. to recall PWs. 1 and 2 for their, further cross-examination. The respondent-filed Counter stating that PWs. 1 and 2 were already cross-examined at length, all the material aspects were brought on record and no such crucial aspects were left out by the defence Counsel and that the present petition is filed only to delay the process. After considering the rival submissions, the trial Court dismissed the said petition-Aggrieved by the same, the present Criminal Petition is filed. 3. Heard learned Counsel for the petitioner/Accused Officer, learned Special Public Prosecutor for ACB Cases and perused the record. 4. Learned Counsel for the petitioner/Accused Officer would submit that the trial Court has dismissed the recall petition on the ground that the trial was commenced about 3½ years ago and the petitioner/Accused Officer wanted to cross-examine PWs. 1 and 2 after three years of their examination and erroneously concluded that there is a chance of the witness to forget the facts of the case and what was deposed in the Court. 1 and 2 after three years of their examination and erroneously concluded that there is a chance of the witness to forget the facts of the case and what was deposed in the Court. It is further submitted that it is necessary to recall PWs. 1 and 2 to establish the innocence of the petitioner/Accused Officer and a fair opportunity is required to be given to him to prove that the prosecution foisted a false case against him. It is also submitted that the petitioner/Accused Officer is very co-operative all through the trial in this case and that he has no intention to delay the proceedings. 5. Per contra, the learned Special Public Prosecutor for ACB Cases would submit that all the material aspects were brought on record and there are no crucial aspects to be elicited from PWs. 1 and 2. 6. A perusal of the material available on record would show that in the petition filed under Section 311 of Cr.P.C. the petitioner/Accused Officer stated that during the course of cross-examination of PWs. 1 and 2, conducted by his previous counsel, certain crucial information has been omitted with regard to the case and also failed to put the defence version of the petitioner/Accused Officer to PWs. 1 and 2, who are the de facto complainant and mediator respectively, as such to prove his innocence, he seeks to recall PWs. 1 and 2 for further cross-examination. 7. Admittedly, the trial in this case has not been completed and the matter was posted for evidence of other witnesses. Considering the facts and circumstances of the case and in view of the nature of offences alleged against the petitioner/Accused Officer, this Court is of the view that an opportunity should be given to the petitioner/Accused Officer to further cross-examine PWs. 1 and 2. However, the petitioner/Accused Officer shall pay costs of ` 3,000/- to the Court Masters and Personal Secretaries Association, High Court of Telangana, Hyderabad, within a period of two weeks from today. 8. With the above direction, the Criminal Petition is allowed, and the order, dated 05.11.2019 passed in Crl. M.P. No. 529 of 2019 in C.C. No. 36 of 2015 on the file of the Special Judge under the Prevention of Corruption Act for Speedy Trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc. Nampally, Hyderabad, is hereby set aside. M.P. No. 529 of 2019 in C.C. No. 36 of 2015 on the file of the Special Judge under the Prevention of Corruption Act for Speedy Trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc. Nampally, Hyderabad, is hereby set aside. The learned trial Judge is directed to recall PWs. 1 and 2 and fix a date for their cross-examination by the Counsel for the petitioner/Accused Officer and he shall complete his cross-examination on the date so fixed by the trial Judge, without fail. 9. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.