IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2010 CORAM: THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.5141 of 2003 and Crl.M.P.No.1822 of 2003 M. Thangavel ... Petitioner. Versus Avinashi Co-operative Marketing Society Avinashi ... Respondent. Prayer: Petition filed under Section 397 r/w 401 Cr.P.C seeking for a direction to call for the records relating to Crl.M.P.No. 71 of 2003 in C.C. No. 157 of 1993 on the file of the Judicial Magistrate, Avinashi and set aside the same and allow the above Criminal Revision Petition. For Petitioner : Mr. G.R. Swaminathan For Respondent : Mr. G. Thangavel O R D E R This petition has been filed towards setting aside the order of the learned Judicial Magistrate, Avinashi passed in Crl.M.P. 71 of 2003 in C.C. No. 157 of 1993 on 05.02.2003. By the order under challenge, the lower Court was pleased to dismiss a petition under Section 311 Cr.P.C. In the case before the lower Court, the petitioner is an accused for an offence punishable under Section 138 of Negotiable Instruments Act and the complainant is a Co-operative Marketing Society. A sum of Rs. 4,87,642.15 was due to the said Society from the petitioner / accused being the amount payable by him in respect of cotton taken by him after having successfully bid in the auction held by the Society. He had issued a cheque for such sum, which was returned unpaid on presentation and on which, the complaint for an offence under Section 138 of Negotiable Instruments Act came to be filed following the procedure envisaged in such section. 2. Originally, the said Society was represented by one Ramasamy and such person had been examined in Chief on 07.01.1998. When the petitioner moved a petition in the year 2001 for recall of the said Ramasamy, it was found that such person had died on 30.11.1999. https://hcservices.ecourts.gov.in/hcservices/ Hence, the lower Court dismissed the petition for his recall under order in C.M.P. No. 5659 of 2000 dated 30.09.2001. By such petition, recall of P.W.3 also was sought for. For reason that the petitioner had already cross examined P.W.3 earlier and the reasons put forth by the petitioner for recall of such witness were found untenable, the lower Court had declined such relief. The complainant Society moved a petition in CMP No. 3110 of 2001 before the lower Court seeking permission that it may be represented by one Sivashanmugam, since the earlier representative had died. Such petition was allowed by the lower Court. Both the orders of the lower Court viz. rejecting the petition by the accused for recall of witness in CMP No. 5659 of 2000 and that in CMP 3110 of 2001 permitting the petitioner / Society to be represented by the said Sivashanmugam were challenged before this Court in Crl.O.P.Nos. 23972 and 23978 of 2001. It is informed that both the petitions have been dismissed by this Court. Thus, question of recall of P.W.3 has been negated with finality. 3. As regards the prayer of cross examination of Sivashanmugam, the lower Court found that the petition to cross examine him was much delayed. The lower Court mentioned in its order that permitting such Sivashanmugam to represent the complainant as also dismissing the earlier petition under Section 311 Cr.P.C were under challenge before this Court in Crl.O.P. Nos. 23972 and 23978 of 2001. It further reasons that Sivashanmugam has been included in the complaint merely in a representative capacity. As stated above, Crl.O.P. Nos. 23972 and 23978 of 2001 stand dismissed. In these circumstances, the order of the lower Court does not call for any interference. Accordingly the Criminal Original Petition is dismissed and the connected miscellaneous petition is closed. 4. The lower Court is hereby directed to complete the trial in the case and dispose of the same within a period of two months from the date of receipt of copy of this order. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ar https://hcservices.ecourts.gov.in/hcservices/ To 1. Judicial Magistrate, Avinashi 2.The Public Prosecutor, High Court, Madras +1 CC to Mr.G.Thangavel Advocate Sr.12263 Crl.O.P.No.5141 of 2003 SAI (CO) https://hcservices.ecourts.gov.in/hcservices/