P. Kathiresan v. Mehala Textile, Sasikumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1410 of 2006P.Kathiresan... Petitionervs.Mehala Textilerep.by its Proprietor,Sasikumar.... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe judgement dated 20.11.2006 passed by the Additional District CumSessions Judge, Coimbatore (Fast Tract Court II, Coimbatore) inC.A.No.339 of 2006 confirming the judgement dated 17.7.2006 passed bythe Judicial Magistrate No.II, Coimbatore, in C.C.No.772 of 2003.For Petitioner : Mr.V.S.BalamuruganFor Respondent : K.Kalyana Sundaram ORDER Challenging and impugning the judgement dated 20.11.2006passed by the Additional District Cum Sessions Judge, Coimbatore(Fast Tract Court II, Coimbatore) in C.A.No.339 of 2006 confirmingthe judgement dated 17.7.2006 passed by the Judicial MagistrateNo.II, Coimbatore, in C.C.No.772 of 2003, this criminal revision caseis focussed.2. Broadly but briefly, narratively but precisely, the factsabsolutely necessary and germane for the disposal of this criminalrevision case would run thus:-The respondent herein preferred complaint under Section 138 ofthe Negotiable Instruments Act as against the revisionpetitioner/accused. Inasmuch as the revision petitioner hereinpleaded not guilty, the trial was conducted.(b) During trial, the proprietor of the complainant's companyexamined himself as P.W.1 and Exs.P1 to P8 were marked. On theaccused's side, the accused examined himself as D.W.1 and nodocumentary evidence was adduced.(c) Ultimately, the trial Court recorded the conviction andimposed the sentence as under: https://hcservices.ecourts.gov.in/hcservices/ Case No.OffencePunishmentC.C.No.772 of 2003Sec.138 of N.I.ActSix months simpleimprisonment and afine of Rs.5000/-, indefault, simpleimprisonment for onemonth. (d) Being aggrieved by and disconcerted with the judgement ofthe lower Court, the appeal in C.A.No.339 of 2006 was preferredbefore the Additional District Cum Sessions Judge, Coimbatore (FastTract Court II, Coimbatore), for nothing but to be dismissed by theappellate 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 kernalof them would run thus:Both the Courts below fell into error in not considering thatthe invoices filed on the side of the complainant did not bear thesignature of the accused. Both the Courts below also failed to notethat the accused was not responsible for the firm SaraswathyTextiles.4. Heard both sides.5. The point for consideration is as to whether there is anyperversity or non application of mind in scrutinising the evidence onrecord, by applying the appropriate law. 6. At the outset itself I would like to point out that bothsides, so to say, the complainant and the accused and also the trialCourt and the appellate Court failed to take into account the factthat the accused was not cross-examined, even though he examinedhimself 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 thevery fact that the accused had not chosen to give reply to the pre-litigation notice would speak volumes adverse to him and that he hasalso not denied the signature found in the impugned cheque.9. Whereas, the learned counsel for the accused, by reiteratingthe grounds of revision, would submit that in the absence ofevidence, much less clinching evidence, both the Courts below werenot justified in recording the conviction as against the accused andthere is no proof to show that actually goods were supplied by thecomplainant in favour of the accused. https://hcservices.ecourts.gov.in/hcservices/

10. The pertinent question arises as to whether both the Courtsbelow ere justified in ignoring the vital point that the accused wasnot cross-examined.11. No doubt, on the side of the complainant several argumentshave been put forth and similarly, the accused also would try towriggle out of the situation by pointing out certain facts. At thisstage, this Court, while exercising the revisional powers, should seeas to whether both the Courts below properly applied their mind inanalysing the evidence and arriving at a conclusion. Had the trialCourt as well as the appellate Court, after taking into account thenon-cross-examination of D.W.1 by the complainant, given reasons asto 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 todecide on that.12. From the perusal of the docket entries made by theMagistrate, what I could understand is that the accused examinedhimself as D.W.1 on 18.11.2005 and after chief examination, it isfound recorded as no cross-examination. Thereafter also there isnothing to show that D.W.1 was cross-examined. There is also nothingto show that the complainant took steps to cross-examine D.W.1. Onthe other hand, on the accused's side application was filed to recallP.W.1 and P.W.1 also presented himself, but even that opportunitywas not utilised by the accused. By way of adding fuel to the fire,the Magistrate in his judgement at paragraph No.7 would incoherentlyrefer that the accused examined himself as D.W.1 and he also refersto some cross-examination and it is not readily known which cross-examination the learned Magistrate is referring to, because theaccused was not at all cross-examined in this case. But thecomplainant 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 theaccused was not cross-examined. This aspect was not noticed byeither of the parties and also by both the Courts below. In myconsidered opinion, whatever might be the circumstances, thecomplainant was duty bound to challenge the deposition on oath givenby the accused, as otherwise that would have serious effect. Theeffect of non cross-examination was not at all considered by both theCourts below. Even though this Court is fully aware of the fact thatthe matter should not be remitted back for filling up the lacuna,nonetheless in the interest of justice, I would like to set asidethe judgements of both the Courts below and remit the matter back tothe Magistrate Court for taking further evidence by giving one moreopportunity to the complainant to cross-examine D.W.1, whereupon, theaccused also shall be given opportunity to cross-examine P.W.1further, as earlier ordered by the lower Court.14. This case is having a chequered carrier of its own andthere is long delay in disposing the matter, wherefore I wouldmandate 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 andpronounce judgement, after entertaining evidence as observed supraand report compliance.The criminal revision case is ordered accordingly. Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarmskTo1.The Additional District Cum Sessions Judge, Coimbatore (Fast Tract Court II, Coimbatore2.The Judicial Magistrate No.II, Coimbatore+ 1 cc to Mr.K.Kalyanasundaram,Advocate,SR.34937+ 1 cc to Mr.V.Raghavachari,Advocate,SR.34869Crl.R.C.No.1410 of 2006LA(CO)EM/21.8.09