Sri Eswara Finance Corporation, v. The State Rep By,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2022
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM Crl.O.P.No.23270 of 2022 and Crl.M.P.No.14857 of 2022 1.Sri Eswara Finance Corporation, No.147, Agraharam Street, Erode District, Represented by Mr.Elancheziyan.
2.Elanchezhiyan ... Petitioners Vs.
State represented by The Deputy Superintendent of Police, Economics Offence Wing-II, Erode District.
(Crime No.7 of 2002) ... Respondent PRAYER : This Criminal Original Petition filed under Section 482 of Cr.P.C., to set aside the Order dated 24.08.2022 passed by the learned Special Judge, Special Court for the Tamil Nadu Protection of Interest of Depositors Act, Coimbatore in Crl.M.P.No.1143 of 2022 in C.C.No,103 of 2008. For Petitioners : Mr.L.Mouli 1/9
For Respondent : Mr.S.Santhosh Government Advocate(Crl.side)
O R D E R
This Criminal Original Petition has been filed to set aside the order dated 24.08.2022 in Crl.M.P.No.1143 of 2022 in C.C.No. 103 of 2008 passed by the learned Special Judge, Special Court for the Tamil Nadu Protection of Interest of Depositors Act, Coimbatore.
2. The learned counsel for the petitioners would submit that the petitioners are arrayed as A1 and A2 in C.C.No. 103 of 2008 and they were prosecuted by the respondent police for having committed offences punishable under Sections 420, 409 of IPC and Section 5 of TNPID Act. He would further submit that on 24.05.2022, the prosecution has examined the witnesses P.W.28, 29 and 30 and on the same day, they were cross-examined by the counsel for the petitioners. He would also submit that P.W.31 and P.W.32 were not cross-examined since the petitioner's counsel having issues in his health on the date of cross-examination. He would also submit that since P.W.31 and P.W.32 are investigating officers, 2/9
they have to be cross-examined in order to elicit the contradictions stated by the prosecution witnesses and a fair opportunity has to be given to the petitioners in order to defend the prosecution case effectively. Hence, he seeks direction to recall P.W.31 and P.W.32 for cross-examination.
3. The learned Government Advocate (Crl.side) for the respondent police would submit that the case is of the year 2002 and despite opportunity has been given to the petitioners for cross-examining the witnesses on the same day of chief-examination, they have not cross-examined P.W.31 and P.W.32. He would further submit that the prosecution witnesses have to be cross-examined on the same day of chief-examination. Hence, the prosecution evidence has been closed. Thereafter, the petitioners had filed a petition under Section 311 of Cr.P.C to recall the witnesses and the same was dismissed. As against which, the present petition has been filed.
4. Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.side) for the respondent police and perused the materials available on records.
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5. On perusal of the records, it is seen that the petitioners are arrayed as A1 and A2 in C.C.No. 103 of 2008 on the file of the learned Special Judge, Special Court for the Tamil Nadu Protection of Interest of Depositors Act, Coimbatore. They have been prosecuted by the respondent police for having committed offences punishable under Sections 420, 409 of IPC and Section 5 of TNPID Act. Admittedly, in this case, the prosecution has examined 32 witnesses and all the witnesses upto P.W.30 were cross-examined by the petitioners counsel. Since the earlier counsel engaged for the petitioners died, the present counsel has been engaged to defend the case for them. On going through the records, it is found that P.W.31 and P.W.32 have not been cross-examined on the same day itself. Admittedly, the investigating officers/ P.W.31 and P.W.
32 have examined all the witnesses and recorded the statement of the witnesses. In order to elicit the contradictions recorded during the prosecution witnesses and also to defend the prosecution case effectively, a fair chance has to be given to the petitioners. Speedy trial is the spirit of Article 21 of the Constitution. At the same time, the accused had right to cross examine the witnesses. A fair trial is also assured by the Constitution.
Crl.A.No.830 of 2013 laid down the principles to be followed while considering an application under Section 311 of Cr.P.C, which reads as follows:- ' (a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
(b) The exercise of the widest discretionary power under Section 311 Cr.P.C should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. (c)If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
(d)The exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
(e)The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
(f)The wide discretionary power should be exercised judiciously and not arbitrarily.
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(g)The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
(h)The object of Section 311 Cr.P.C simultaneously imposes a duty on the Court to determine the truth and to render a just decision. (i)The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(j)Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
(k)The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
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(l)The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
(m)The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (n)The power under Section 311 of Cr.P.C must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right [Rajaram Yadav v State of Bihar, AIR 2013 SC 3081 : 2013 Cr LJ 3777 (SC) : (2013) 14 SCC 461].' In order to give an opportunity to the petitioners to defend the prosecution case effectively, this Court is inclined to allow this petition to cross-examine the witnesses P.W.31 and P.W.32.
6. Accordingly, this Criminal Original Petition stands allowed and the order passed by the the learned Special Judge, Special Court for the Tamil Nadu Protection of Interest of Depositors Act, Coimbatore in Crl.M.P.No.1143 of 2022 7/9
in C.C.No. 103 of 2008 is hereby set aside. However, the Trial Court is directed to recall P.W.31 and P.W.32 for cross-examination and the petitioner is hereby directed to cross-examine the P.W.31 and P.W.32 on the same day itself without any adjournment. Further, the Trial Court is directed to dispose of the case as expeditiously as possible. Consequently, connected miscellaneous petition is closed.
27.09.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order nr To
1. The learned Special Judge, Special Court for the Tamil Nadu Protection of Interest of Depositors Act, Coimbatore 2.The Deputy Superintendent of Police, Economics Offence Wing-II, Erode District.
3.The Public Prosecutor, High Court of Madras, Chennai.
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V.SIVAGNANAM,J.
nr Crl.O.P.No.23270 of 2022 and Crl.M.P.No.14857 of 2022 27.09.2022 9/9