IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 20.08.2009 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Revision Petition No.602 of 2007 B.M.Gnanavolivu ..Petitioner Versus V.S.Thomas .. Respondent Criminal revision filed under Section 397 r/w 401 Cr.P.C against the order dated 05.04.2007 passed in M.P.No.62 of 2006 in C.A.No.110 of 2005, on the file of the Additional Sessions Judge, FTC-III, Chennai. For petitioner : Mr.C.D.Johnson For respondent : Mr.J.I.Rajkumar Robert ORDER The respondent herein filed a private complaint against the petitioner herein and the petitioner herein was convicted by the II Metropolitan Magistrate, Egmore, Chennai-8, for offences under Sections 409 r/w 406 IPC and he was sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo three months rigorous imprisonment. Against the said Judgment, the petitioner herein also preferred an appeal before the learned Sessions Judge, and it is pending before the learned Additional Sessions Judge, FTC-III, Chennai in Crl.A.No.110 of 2005. Pending appeal, the petitioner filed an application under Section 391 Cr.P.C for additional evidence and to permit the accused to examine himself as a defence witness and also to mark certain documents. The said application in Crl.M.P.No.62 of 2006 was dismissed. Aggrieved by the said order, the petitioner had preferred this revision. 2. The learned counsel for the petitioner submits that both petitioner and respondent are brothers and both of them were looking after business in M/s.Meillur Products and M/s.Alcrafts and as a misunderstanding arose between them, the respondent/complainant filed a private complaint against the petitioner with false allegations. The learned counsel for the petitioner further submits that before the trial Court, the prosecution evidence was closed on 08.05.204 and the case was posted for defence. During the period https://hcservices.ecourts.gov.in/hcservices/ the accused/petitioner was held up in Bangalore to look after his aged mother, as she was admitted in the hospital on 14.02.2005 and latter died on 23.05.2005. In the mean time, without giving any opportunity to the petitioner/accused to prove his case through defence witness and documents, the trial Court had pronounced the Judgment on 04.02.2005. 3. The learned counsel for the respondent submits that the complaint was taken on file as early as in the year 1998, but the accused had prolonged the trial. The complainant filed an application even before the trial Court for summoning certain documents, but the accused has stated that those documents were not available with him. The accused also has not chosen to examine any defence witness before the trial Court and he also made an endorsement to that effect on the court record. 4. The learned counsel for the respondent further submits that even before the appellate Court, on earlier occasion the accused filed an application under Section 391 Cr.P.C and subsequently he had withdrawn the said application and this is the second application before the appellate court. After the case being fully heard, it was posted for Judgment. The learned counsel for the respondent vehemently submits that the intention of the accused is only to drag on the case. 5. The learned counsel for the petitioner submits that the first application filed by the petitioner under Section 391 Cr.P.C before the appellate Court was withdrawn by his counsel without the consent of the petitioner and therefore the petitioner had engaged another counsel and filed a fresh application. The learned counsel for the petitioner also submits that if the accused is not given a chance to examine himself as defence witness, a grave prejudice would be caused to him. 6. This Court considered the submission made by the parties and perused the records. It is true that the case is pending for several years. The occurrence relates to the period between April 1979 and October 1987 and the complaint has been preferred in the year 1991. Subsequently, it had been taken on file only in the year 1998 and Judgment was delivered by the trial Court in the year 2005. 7. It appears that both the complainant and the accused are brothers and they were doing business and the allegation against the accused is that he used the blank cheques of the complaint for enriching himself by duly filling up the cheques and depositing the them into his own account and converted the same to his own use. Though the trial Court found the accused guilty, the appeal has now been preferred before the Sessions Court. It is the main contention of the accused/revision petitioner herein that he was not given https://hcservices.ecourts.gov.in/hcservices/ sufficient opportunity by the trial Court to prove his case through his defence witnesses and by marking documents. Though according to the complainant, an endorsement was made stating that no defence witness is to be examined. That endorsement was made by the learned counsel for the accused, but at that time, the accused was in Bangalore as his mother was sick and his mother was admitted in the hospital on 14.02.2005 and died on 23.02.2005. The Judgment was pronounced by the trial Court on 04.03.2005. 8. The appellate Court while dismissing the application filed by the petitioner has observed that a direction was issued to the accused by the trial Court to produce certain documents maintained by the accused in respect of "Meillieur Products" and "Alcrafts" company and an endorsement was made by the learned counsel that those documents were not in the custody of the accused. Now the accused has filed the petition before the appellate Court stating that he wants to examine himself as a defence witness and also wants to mark certain documents, but at the same time, he did not file any application for summoning those documents. Now the petitioner wants to examine himself as a defence witness on the ground that he was not available from 14.02.2005 when the case was pending before the trial Court. This Court also feels that the accused has to be given a chance to prove his defence. Though it is a belated request by the accused to examine himself as a defence witness, in the interest of justice, the accused may be allowed to be examine himself as a defence witness. Normally in criminal cases, the accused will not come forward to examine himself as a defence witness, taking the risk of cross examination and further the accused can never be compelled to give evidence against himself. 9. In this case, the accused has come forward to examine himself as a defence witness and subject himself for cross examination by the complainant. In the said circumstances, this Court feels that the appellate Court should permit the accused to examine himself as a defence witness, after his own request in writing as required under Section 315 Cr.P.C. At the same time, this Court makes it clear that the accused may examine himself as a defence witness with the documents available with him and there should not be any further delay by way of summoning any document or by summoning any other witness as additional evidence. 10. The appellate Court is directed to permit the accused to examine himself as a defence witness and such course should be completed within a period of 15 days from the date of the order copy reaching the appellate Court. Though under Section 391 Cr.P.C additional evidence may be taken up either by the appellate Court itself or by the Magistrate, in this case, additional evidence should be taken by the appellate Court itself to avoid any further https://hcservices.ecourts.gov.in/hcservices/ delay. After completion of the examination of the defence witness, the appellate Court is directed to dispose of the appeal within a period of one month. 11. In the result, the order passed in Crl.M.P.No.62 of 2006 in C.A.No.110 of 2005 dated 05.04.2007 is set aside and the revision petition is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksr To 1.The Additional Sessions Judge, F.T.C.III, Chennai. 2.The II Metropolitan Magistrate, Egmore, Chennai-8. +1cc to Mr.C.D.Johnson, Advocate Sr 40267 +3ccs to Mr.J.I.Rajkumar Roberts, Advocate Sr 40637 KA(CO) km/31.8. Crl.R.C.No.602 of 2007 https://hcservices.ecourts.gov.in/hcservices/