1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:11.12.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.OP(MD)No.174 of 2011 and MP(MD) No.1 of 2011 A.Joseph :Petitioner/Accused -Vs- M.Murugan @ Uthayam Murugan :Respondent/Respondent PRAYER:This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed by the learned Judicial Magistrate Court, Uthamapalayam in Crl.M.P.No.21328 of 2010 in S.T.C.No.87 of 2008 dated 24.11.2010 and allow the Criminal Original Petition. For Petitioner:Mr.P.Ganapathi Subramanian For Respondent:Mr.M.Kannan ORDER This petition has been filed by the petitioner/accused to set aside the order passed by the Judicial Magistrate, Uthamapalayam in Crl.O.P.No.21328 of 2010 in S.T.C.No.87 of 2008 dated 24.11.2010. 2.Heard Mr.P.Ganapathi Subramanian, learned counsel appearing for the petitioner and Mr.M.Kannan, learned Government Advocate (criminal side) appearing for the respondent/State. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is an accused before the lower Court in S.T.C.No.87 of 2008 in a case filed by the respondent in a private complaint under Section 138 of the Negotiable Instrument Act. He would further submit in his argument that while the case was taken up for trial, the complainant was examined as P.W.1 and his examination was also over. However, when the petitioner/accused has filed a petition for recalling him for further cross examination under Section 311 Cr.P.C., and the said petition was not ordered by the lower Court by holding that the petitioner had filed the said petition only to drag on the proceedings. 4.He would further submit in his argument that the trial was offing and such refusal to do the cross examination of P.W.1 itself is an arbitrary one and the petitioner ought to have been given an opportunity to do cross examination of P.W.1 and the refusal is amounting to denial of justice. Therefore, he would request the Court that the order passed by the lower Court without any reason in rejecting the petition filed by the petitioner seeking for further cross examination of P.W.1 under Section 311 Cr.P.C. may be set aside and he may be directed to cross examine P.W.1. 5.The learned counsel appearing for the respondent would submit in his argument that the present petition seeking to set aside the order of the lower Court is purely for the purpose of dragging on the proceedings. Similarly, he had filed the said application before the lower Court even before he was questioned under Section 313 Cr.P.C. But, the petitioner was filed only after the said questioning in order to prolong the case. Therefore, there is no reason on the part of the petitioner to file such an application, but it was done only for the purpose of prolonging the case. https://hcservices.ecourts.gov.in/hcservices/ 2 6.He would further submit in his argument that the reasons given by the lower Court in rejecting the petitioner are perfectly sound and sustainable and therefore, there is no need for setting aside the order passed by the lower Court. 7.I have paid anxious consideration to the arguments advanced on either side. 8.The complaint given by the respondent before the lower Court was taken cognizance under Section 138 of the Negotiable Instrument act and summons were issued to the petitioner and he appeared and the case was also proceeded by examination of witnesses on the complainant side. The case was also posted for questioning and the petitioner/accused had answered to the questions posed to him under Section 313 Cr.P.c. Thereafter, the petitioner has field an application for recalling P.W.1, the complainant for further cross examination under section 311 Cr.P.C. The said petition was dismissed by stating that it was highly belated and sans accepting the reasons stated by the petitioner. 9. No doubt, it is true that the trial is still pending and it was not over, but posted for judgment. Even though, it is posted for judgment, the case is deemed to have been pending for pending trial or enquiry till the pronouncement of the judgment. Concept of re-examination or examination to further witnesses under Section 311 Cr.P.C would be that it could be resorted to by the parties concerned at any point of time during the enquiry, before the lower Court. Therefore, it cannot be said that the option exercised by the petitioner to examine P.W.1 under Section 311 Cr.P.C. for further cross-examination is not belated. 10.Therefore, I could see that the reasons given by the lower Court for rejecting the plea of the petitioner for the cross examination of P.W.1 under Section 311 Cr.P.C are not at all sustainable. Therefore, the said order passed by the lower Court is liable to be set aside, in view of the fact that the petitioner ought to have been given an opportunity to do cross examination of P.W.1 11.Accordingly, this criminal petition is ordered and the order passed by the lower Court in refusing to examine P.W.1 for the purpose of doing cross examination in Crl.M.P.No.21328 of 2010 in S.T.C.No.87 of 2008 dated 24.11.2010 is hereby set aside. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (P&A) / TRUE COPY / Sub Assistant Registrar To: 1.The Judicial Magistrate, Uthamapalayam. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC to Mr.P.Ganapathi Subramanian, Advocate. SR.No.8650. Arul Crl.O.P.(MD)No.174 of 2011 RP/04.03.2011/1P/4C. 11.02.2011 https://hcservices.ecourts.gov.in/hcservices/