IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1410 of 2006 P.Kathiresan ... Petitioner vs. Mehala Textile rep.by its Proprietor, Sasikumar .... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement dated 20.11.2006 passed by the Additional District Cum Sessions Judge, Coimbatore (Fast Tract Court II, Coimbatore) in C.A.No.339 of 2006 confirming the judgement dated 17.7.2006 passed by the Judicial Magistrate No.II, Coimbatore, in C.C.No.772 of 2003. For Petitioner : Mr.V.S.Balamurugan For Respondent : K.Kalyana Sundaram ORDER Challenging and impugning the judgement dated 20.11.2006 passed by the Additional District Cum Sessions Judge, Coimbatore (Fast Tract Court II, Coimbatore) in C.A.No.339 of 2006 confirming the judgement dated 17.7.2006 passed by the Judicial Magistrate No.II, Coimbatore, in C.C.No.772 of 2003, this criminal revision case is focussed. 2. Broadly but briefly, narratively but precisely, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:- The respondent herein preferred complaint under Section 138 of the Negotiable Instruments Act as against the revision petitioner/accused. Inasmuch as the revision petitioner herein pleaded not guilty, the trial was conducted. (b) During trial, the proprietor of the complainant's company examined himself as P.W.1 and Exs.P1 to P8 were marked. On the accused's side, the accused examined himself as D.W.1 and no documentary evidence was adduced. (c) Ultimately, the trial Court recorded the conviction and imposed the sentence as under: https://hcservices.ecourts.gov.in/hcservices/ Case No. Offence Punishment C.C.No.772 of 2003 Sec.138 of N.I.Act Six months simple imprisonment and a fine of Rs.5000/-, in default, simple imprisonment for one month. (d) Being aggrieved by and disconcerted with the judgement of the lower Court, the appeal in C.A.No.339 of 2006 was preferred before the Additional District Cum Sessions Judge, Coimbatore (Fast Tract Court II, Coimbatore), for nothing but to be dismissed by the appellate Court, confirming the judgement of the trial Court. 3. Animadverting upon the judgements of both the Courts below, this revision has been filed on various grounds, the gist and kernal of them would run thus: Both the Courts below fell into error in not considering that the invoices filed on the side of the complainant did not bear the signature of the accused. Both the Courts below also failed to note that the accused was not responsible for the firm Saraswathy Textiles. 4. Heard both sides. 5. The point for consideration is as to whether there is any perversity or non application of mind in scrutinising the evidence on record, by applying the appropriate law. 6. At the outset itself I would like to point out that both sides, so to say, the complainant and the accused and also the trial Court and the appellate Court failed to take into account the fact that the accused was not cross-examined, even though he examined himself as D.W.1. 7. The core question arises as to what is the effect of non- cross-examination of the accused. 8. The learned counsel for the complainant would argue that the very fact that the accused had not chosen to give reply to the pre- litigation notice would speak volumes adverse to him and that he has also not denied the signature found in the impugned cheque. 9. Whereas, the learned counsel for the accused, by reiterating the grounds of revision, would submit that in the absence of evidence, much less clinching evidence, both the Courts below were not justified in recording the conviction as against the accused and there is no proof to show that actually goods were supplied by the complainant in favour of the accused. https://hcservices.ecourts.gov.in/hcservices/ 10. The pertinent question arises as to whether both the Courts below ere justified in ignoring the vital point that the accused was not cross-examined. 11. No doubt, on the side of the complainant several arguments have been put forth and similarly, the accused also would try to wriggle out of the situation by pointing out certain facts. At this stage, this Court, while exercising the revisional powers, should see as to whether both the Courts below properly applied their mind in analysing the evidence and arriving at a conclusion. Had the trial Court as well as the appellate Court, after taking into account the non-cross-examination of D.W.1 by the complainant, given reasons as to what made both the Courts below to ignore the deposition of D.W.1, then the matter would have been different and this Court has to decide on that. 12. From the perusal of the docket entries made by the Magistrate, what I could understand is that the accused examined himself as D.W.1 on 18.11.2005 and after chief examination, it is found recorded as no cross-examination. Thereafter also there is nothing to show that D.W.1 was cross-examined. There is also nothing to show that the complainant took steps to cross-examine D.W.1. On the other hand, on the accused's side application was filed to recall P.W.1 and P.W.1 also presented himself, but even that opportunity was not utilised by the accused. By way of adding fuel to the fire, the Magistrate in his judgement at paragraph No.7 would incoherently refer that the accused examined himself as D.W.1 and he also refers to some cross-examination and it is not readily known which cross- examination the learned Magistrate is referring to, because the accused was not at all cross-examined in this case. But the complainant as P.W.1 was cross-examined by the accused. As such, without any clarity the Magistrate referred to some cross- examination. 13. A close scrutiny of the records would reveal that D.W.1 the accused was not cross-examined. This aspect was not noticed by either of the parties and also by both the Courts below. In my considered opinion, whatever might be the circumstances, the complainant was duty bound to challenge the deposition on oath given by the accused, as otherwise that would have serious effect. The effect of non cross-examination was not at all considered by both the Courts below. Even though this Court is fully aware of the fact that the matter should not be remitted back for filling up the lacuna, nonetheless in the interest of justice, I would like to set aside the judgements of both the Courts below and remit the matter back to the Magistrate Court for taking further evidence by giving one more opportunity to the complainant to cross-examine D.W.1, whereupon, the accused also shall be given opportunity to cross-examine P.W.1 further, as earlier ordered by the lower Court. 14. This case is having a chequered carrier of its own and there is long delay in disposing the matter, wherefore I would mandate that the Magistrate shall dispose of the case within a period https://hcservices.ecourts.gov.in/hcservices/ of two months from the date of receipt of copy of this order and pronounce judgement, after entertaining evidence as observed supra and report compliance. The criminal revision case is ordered accordingly. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar msk To 1.The Additional District Cum Sessions Judge, Coimbatore (Fast Tract Court II, Coimbatore 2.The Judicial Magistrate No.II, Coimbatore + 1 cc to Mr.K.Kalyanasundaram,Advocate,SR.34937 + 1 cc to Mr.V.Raghavachari,Advocate,SR.34869 Crl.R.C.No.1410 of 2006 LA(CO) EM/21.8.09 https://hcservices.ecourts.gov.in/hcservices/