B.M.Gnanavolivu v. V.S.Thomas

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 20.08.2009CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCriminal Revision Petition No.602 of 2007B.M.Gnanavolivu ..PetitionerVersusV.S.Thomas.. RespondentCriminal revision filed under Section 397 r/w 401 Cr.P.C againstthe order dated 05.04.2007 passed in M.P.No.62 of 2006 in C.A.No.110of 2005, on the file of the Additional Sessions Judge, FTC-III,Chennai.For petitioner: Mr.C.D.JohnsonFor respondent: Mr.J.I.Rajkumar RobertORDERThe respondent herein filed a private complaint against thepetitioner herein and the petitioner herein was convicted by the IIMetropolitan Magistrate, Egmore, Chennai-8, for offences underSections 409 r/w 406 IPC and he was sentenced to undergo six monthsrigorous imprisonment and to pay a fine of Rs.1000/- in default toundergo three months rigorous imprisonment. Against the saidJudgment, the petitioner herein also preferred an appeal before thelearned Sessions Judge, and it is pending before the learnedAdditional Sessions Judge, FTC-III, Chennai in Crl.A.No.110 of 2005.Pending appeal, the petitioner filed an application under Section391 Cr.P.C for additional evidence and to permit the accused toexamine himself as a defence witness and also to mark certaindocuments. The said application in Crl.M.P.No.62 of 2006 wasdismissed. Aggrieved by the said order, the petitioner hadpreferred this revision. 2. The learned counsel for the petitioner submits that bothpetitioner and respondent are brothers and both of them werelooking after business in M/s.Meillur Products and M/s.Alcrafts andas a misunderstanding arose between them, the respondent/complainantfiled a private complaint against the petitioner with falseallegations. The learned counsel for the petitioner further submitsthat before the trial Court, the prosecution evidence was closed on08.05.204 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 hisaged mother, as she was admitted in the hospital on 14.02.2005 andlatter died on 23.05.2005. In the mean time, without giving anyopportunity to the petitioner/accused to prove his case throughdefence witness and documents, the trial Court had pronounced theJudgment on 04.02.2005.3. The learned counsel for the respondent submits that thecomplaint was taken on file as early as in the year 1998, but theaccused had prolonged the trial. The complainant filed anapplication even before the trial Court for summoning certaindocuments, but the accused has stated that those documents were notavailable with him. The accused also has not chosen to examine anydefence witness before the trial Court and he also made anendorsement to that effect on the court record. 4. The learned counsel for the respondent further submits thateven before the appellate Court, on earlier occasion the accusedfiled an application under Section 391 Cr.P.C and subsequently hehad withdrawn the said application and this is the secondapplication before the appellate court. After the case being fullyheard, it was posted for Judgment. The learned counsel for therespondent vehemently submits that the intention of the accused isonly to drag on the case.5. The learned counsel for the petitioner submits that the firstapplication filed by the petitioner under Section 391 Cr.P.C beforethe appellate Court was withdrawn by his counsel without theconsent of the petitioner and therefore the petitioner had engagedanother counsel and filed a fresh application. The learned counselfor the petitioner also submits that if the accused is not given achance to examine himself as defence witness, a grave prejudicewould be caused to him.6. This Court considered the submission made by the parties andperused the records. It is true that the case is pending forseveral years. The occurrence relates to the period between April1979 and October 1987 and the complaint has been preferred in theyear 1991. Subsequently, it had been taken on file only in the year1998 and Judgment was delivered by the trial Court in the year 2005.7. It appears that both the complainant and the accused arebrothers and they were doing business and the allegation against theaccused is that he used the blank cheques of the complaint forenriching himself by duly filling up the cheques and depositing thethem into his own account and converted the same to his own use.Though the trial Court found the accused guilty, the appeal has nowbeen preferred before the Sessions Court. It is the main contentionof 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 throughhis defence witnesses and by marking documents. Though according tothe complainant, an endorsement was made stating that no defencewitness is to be examined. That endorsement was made by the learnedcounsel for the accused, but at that time, the accused was inBangalore as his mother was sick and his mother was admitted in thehospital on 14.02.2005 and died on 23.02.2005. The Judgment waspronounced by the trial Court on 04.03.2005. 8. The appellate Court while dismissing the application filedby the petitioner has observed that a direction was issued to theaccused by the trial Court to produce certain documents maintainedby the accused in respect of "Meillieur Products" and "Alcrafts"company and an endorsement was made by the learned counsel thatthose documents were not in the custody of the accused. Now theaccused has filed the petition before the appellate Court statingthat he wants to examine himself as a defence witness and also wantsto mark certain documents, but at the same time, he did not file anyapplication for summoning those documents. Now the petitioner wantsto examine himself as a defence witness on the ground that he wasnot available from 14.02.2005 when the case was pending before thetrial Court. This Court also feels that the accused has to be givena chance to prove his defence. Though it is a belated request bythe accused to examine himself as a defence witness, in the interestof justice, the accused may be allowed to be examine himself as adefence witness. Normally in criminal cases, the accused will notcome forward to examine himself as a defence witness, taking therisk of cross examination and further the accused can never becompelled to give evidence against himself. 9. In this case, the accused has come forward to examine himselfas a defence witness and subject himself for cross examination bythe complainant. In the said circumstances, this Court feels thatthe appellate Court should permit the accused to examine himself asa defence witness, after his own request in writing as requiredunder Section 315 Cr.P.C. At the same time, this Court makes itclear that the accused may examine himself as a defence witness withthe documents available with him and there should not be any furtherdelay by way of summoning any document or by summoning any otherwitness as additional evidence. 10. The appellate Court is directed to permit the accused toexamine himself as a defence witness and such course should becompleted within a period of 15 days from the date of the order copyreaching the appellate Court. Though under Section 391 Cr.P.Cadditional evidence may be taken up either by the appellate Courtitself or by the Magistrate, in this case, additional evidenceshould 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 aperiod of one month. 11. In the result, the order passed in Crl.M.P.No.62 of 2006 inC.A.No.110 of 2005 dated 05.04.2007 is set aside and the revisionpetition is allowed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksrTo1.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 40637KA(CO)km/31.8.Crl.R.C.No.602 of 2007