Madras High CourtCRL OP/16959/2018ordered

M/S.Fabrics & Beyond Clothing, v. Mrs.Preethibala

2018-07-04Honourable Mr Justice P. N. Prakash3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.07.2018

CORAM

THE HON'BLE MR.JUSTICE P.N.PRAKASH Crl.O.P. Nos.16959 & 16960 of 2018 and Crl.MP.Nos.8759 & 8760 of 2018 1.M/s.Fabrics & Beyond Clothing and Accessories Pvt. Ltd., Represented by its Directors Mr.Prasad and Mr.Venkat Having Registered Office at No.1/6, Third Cross Street, Venkateswara Nagr, First Main Road, Ramapuram, Chennai-600 089.

2.Mr.Prasad S/o.G.Chandra Sekar Director M/s.Fabrics & Beyond Clothing and Accessories Pvt. Ltd., Represented by its Directors Having Registered Office at No.1/6, Third Cross Street, Venkateswara Nagr, First Main Road, Ramapuram, Chennai-600 089.

3.Mr.Venkat S/o.Eatheendran Director M/s.Fabrics & Beyond Clothing and Accessories Pvt. Ltd., Represented by its Directors Having Registered Office at No.1/6, Third Cross Street, Venkateswara Nagr, First Main Road, Ramapuram, Chennai-600 089.

...Petitioners

(in Crl.O.P. Nos.16959 & 16960 of 2018) vs.

Mrs.Preethibala Prop.M/s.Sha Jewanthraj Ashok Kumar Rep. by POA M.Premdas Vaishnav Old No.90, New No.4, Godown Street, Chennai-600 001.

...Respondents

(in Crl.O.P. Nos.16959 & 16960 of 2018) Criminal Original Petition filed under Section 482, Cr.P.C. to set aside the order passed by the Metropolitan Magistrate, Fast Track Court No.IV, George Town, Chennai-600 001 in Crl.MP.No.2514 of 2018 in C.C.No.949 of 2016 and Crl.MP.No.2513 of 2018 in C.C.No.305 of 2016 dated 29.05.2018. For petitioner : Mr.R.Thamariselvan (in Crl.O.P. Nos.16959 & 16960 of 2018) C O M M O N O R D E R These Criminal Original Petitions have been filed to set aside the order dated 29.05.2018 passed by the Metropolitan Magistrate, Fast Track Court No.IV, George Town, Chennai-600 001 in Crl.MP.No.2514 of 2018 in C.C.No.949 of 2016 and Crl.MP.No.2513 of 2018 in C.C.No.305 of 2016 respectively.

2. The petitioners are facing prosecution in C.C.Nos.305 of 2016 and 949 of 2016 before the Metropolitan Magistrate, Fast Track Court No.IV, George Town, Chennai-600 001, under Section 138 of Negotiable Instruments Act, 1881. It is seen that the complainant was examined in the year 2016 and he was not cross examined by the accused. The case was posted for 18 hearings and the accused did not choose to cross examine the complainant. The accused was examined under Section 313 Cr.P.C. and thereafter, the matter was posted for defence evidence. Then also, the accused did not adduce any evidence. However, the accused filed Crl.M.P.No.2514 of 2018 in C.C.No.949 of 2016 and Crl.M.P.No.2513 of 2018 in C.C.No.305 of 2016 to recall PW1, on the ground that Venkat (A3) was suffering from certain physical ailment. Both the petitions have been dismissed by the trial Court by two different orders dated 25.07.2018, challenging which, these petitions have been filed.

3. Learned counsel for the petitioners/accused submitted that Venkat(A3) was suffering serious kidney ailment and therefore, he was not able to give instructions to his counsel.

4. However, it is seen that there is yet another accused by name Prasad in these cases, who also did not cross-examine the witness. The trial Court has rightly rejected the petitions filed by the accused relied upon the judgment of the Supreme Court in A.G. Vs. Shiv Kumar Yadav and another, [(2016) 2 SCC 402], . However, this Court is of the view that an opportunity may be granted to the accused on condition that they deposit Rs.2,00,000/- (Rupees two lakhs only) each in C.C.No.305 of 2016 and C.C.No.949 of 2016 (totally Rs.4,00,000/-) within a period of three weeks from the date of receipt of copy of this order. On such deposit, the trial Court shall re-call PW1. When PW1 appears for giving evidence, the petitioners/accused shall pay costs of Rs.5,000/- each in C.C.Nos.

305 of 2016 & 949 of 2016 to PW1 and cross examine PW1 on the same day. If the petitioners/accused fail to deposit Rs.4,00,000/- (Rupees Four Lakhs Only) within a period of three weeks, they will forfeit their right to cross-examine PW1. Boycott of Courts cannot be stated as a reason for not cross-examining PW1 on the day when PW1 appears before the trial Court for giving evidence. The trial Court shall disburse the sum of Rs.4,00,000/- (Rupees Four Lakhs Only) either to the complainant or to the accused depending upon the out come before the trial Court. With the above directions, these petitions are ordered, accordingly. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar mk To The Metropolitan Magistrate, Fast Track Court No.IV, George Town, Chennai-600 001.

+1cc to Mr.S.SHANKAR, Advocate, S.R.No. 43055 & 43056 Crl.O.P. Nos.16959 & 16960 of 2018 TR(05/07/2018)