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Madras High CourtCRL OP/21637/2021allowed

L.Chandrasekaran v. State Rep By

2021-11-24Honourable Mr Justice M. Nirmal Kumar3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.11.2021

CORAM:

THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR CRL.O.P.No.21637 of 2021 L.Chandrasekaran ... Petitioner/Accused

Versus

The State rep. by The Deputy Superintendent of Police, EOW-II Namakkal.

Crime No.1 of 2013 ... Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed in Crl.M.P.No.898 of 2021 dated 29.09.2021 in C.C.No.20 of 2013, on the file of the Court of the Special Judge, Special Court under TNPID Act, Coimbatore.

For Petitioner :

Mr.S.Sheik Ismail For Respondent :

Mr.E.Raj Thilak Additional Public Prosecutor

O R D E R

The petitioner/A2 in C.C. No.20 of 2013 on the file of Court of Special Judge, Special Court under TNPID Act, Coimbatore, is facing trial for offences under Sections 120-B, 420 IPC and Section 5 of the TNPID Act. The petitioner filed a Recall Petition under Section 311 Cr.P.C. to cross-examine PWs.1 to 118, the same was dismissed, against which the present petition has been filed.

2. The contention of the petitioner is that PWs.1 to 115 are investors, who had deposited in the schemes of the First accused company. The petitioner is only a Partner in the said company and he has not involved in the day to day affairs and business of the said company. The first accused company has got vast properties to the extent of 32.00 Acres, which are valued more than 20.00 Crores. For obvious reasons, the DRO as well the prosecution are not taking any steps to bring the properties to attachment and for auction, which would fetch more money than the liability of the first accused company. The petitioner has been falsely implicated in this case.

Around Rs.80.00 Lakhs of money has been repaid to more than 25 depositors. These facts have been suppressed. Hence recalling of these witnesses are important.

3. The learned Additional Public Prosecutor submits that in this case, there are totally 118 witnesses have been examined. PWs.1 to 115 are depositors. The total amount cheated by the petitioner and others comes to Rs.2,37,98,020/-. Earlier, A6 had filed a petition under Section 311 Cr.P.C. to recall certain witnesses, which was dismissed on 10.03.2021. Thereafter, this petitioner, in a different form, had filed a recall petition on 16.03.2021. The petitioner, in connivance and continuation with A6's defence had filed this petition. He further submitted that the examination of the prosecution witnesses was commenced on 09.10.2015 and closed finally on 04.02.2021. The accused were questioned under Section 313(1)(b) Cr.P.C. for any incriminating materials found in the evidence of prosecution witnesses. Thereafter these petitions have been filed to delay the proceedings in the trial, 115 depositors have been cheated and are made to suffer due to petitioner cheating them.

4. The learned Additional Public Prosecutor further submits that, on the petitioner's last limb in argument that at least PWs.117 and 118, the Investigating Officers, alone may be permitted to be recalled and cross-examined, he strongly objected to the same for the reasons that cross examination of both the witnesses have been elaborately done by other than the petitioner and A1 and A3. This is an arrangement made amongst the accused.

5. Considering the submission of both the sides and on perusal of the materials available on record, it is seen that the petitioner had not cross examined PWs.117 and 118, the Investigating Officers, in this case. Though the case is now posted for arguments on 26.11.2021 before the trial court, the petitioner who is facing offence of serious nature, has to be necessarily permitted to cross examine PWs.117 and 118 - Investigating Officers, to put-forth his case and defence. PWs.117 and 118 are Investigating Officers and the Government servants and that by calling them again for cross examination, it cannot be termed as harassment. Further, the evidence of the witnesses would be complete only on cross examination, after it is tested, which would be beneficial to not only to the petitioner and prosecution, but also for the trial court for proper and better adjudication.

6. In view of the same, this court is inclined to recall PWs.117 and 118, namely the Investigating Officers, for cross examination by the petitioner. Finding that both PWs.117 and 118 have retired from service, the petitioner is directed to

pay a sum of Rs.5,000/- each to them on their appearance, as cost.

7. It is further directed that the cross examination of PWs.117 and 118 has to be completed within a period of two weeks from the date of receipt of a copy of this order. This two weeks is only an outer limit.

8. With the above direction, the criminal original petition is disposed of.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar vm/asr To 1.The Special Judge, Special Court under TNPID Act, Coimbatore.

2.The Deputy Superintendent of Police, EOW-II Namakkal.

3. The Public Prosecutor, High Court, Chennai.

+1 cc to Mr.S.Sheik Ismail, Advocate Sr.NO. 60918 CRL.O.P.No.21637of 2021 NK(CO) A.SK(25.11.2021)