This criminal original petition has been filed under Section 482 of Cr.P.C., praying to call for the records relating to the order dated 26.02.2010 in Cr.R.P.No.30 of 2009 on the file of District & Sessions Court (EC Act Cases), Thanjavur, confirming the order of the I Additional District Munsif cum Judicial Magistrate, Kumbakonam dated 28.07.2009 in Cr.M.P.No.1095 of 2008 in S.T.C.No.163 of 2006 and quash the same.
2.It is averred in the petition that the petitioner, being an accused in a case under Section 138 of N.I.Act, filed a petition under
Section 311 of Cr.P.C., to recall the witness viz., Amaravathi, who is alleged to have lent money to the petitioner. The Judicial Magistrate dismissed the said application. Against that, the petitioner preferred revision before the District and Sessions Court, (EC Act Cases), and the same was also dismissed by the District and Sessions Judge (EC Cases), Thanjavur, confirming the order of the I Additional District Munsif cum Judicial Magistrate, Kumbakonam. It is further stated that only the power agent, who preferred the complaint before the Court was examined as a witness and he is noway connected with the alleged transaction. The complainant, who actually involved in the transaction, is necessarily to be cross-examined by the petitioner to rebut the legal presumption as contemplated under
Section 139 of N.I.Act. Therefore, the order of the District and Sessions Judge in Crl.R.P.No.30 of 2009 is to be quashed.
3.The learned counsel for the petitioner contends that Amaravathi, who is alleged to have involved in the transaction with the petitioner has to be examined by the petitioner so as to rebut the legal presumption under
Section 139 of I.P.C. and the denial of such opportunity would grossly prejudice the rights of the petitioner and therefore, the order of the District and Sessions Judge is to be quashed.
4.The learned counsel for the respondent, per contra, contends that the complaint has been preferred by power agent on behalf of Amaravathi and it is prerogative of the complainant to examine either the power agent or the principal and the petitioner has no right to compel the complainant to subject the principal for examination. It is further contended that the petitioner has come forward with an application under
Section 311 of Cr.P.C., as fourth time before the Court that too, when the case is posted for judgment in the year 2008 in a case of the year 2006 and therefore, the petition is to be dismissed.
5.This Court perused the orders of the Judicial Magistrate as well as the District and Sessions Judge. It is found that in a case of the year 2006, when the case is posted for judgment, the petitioner filed the petition under
Section 311 of Cr.P.C., fourth time that too, seeking to examine the principal Amaravathi.
6.The learned counsel for the petitioner brought to the notice of this Court the earlier decision of this Court in Rajani Vs. Gopakumaran Nair reported in 2016(3) MWN (Cr.) DCC 46 (Mad.) and contended that it is prerogative of the prosecution to prove its case by examining witnesses on its side. As rightly observed in the above judgment, it is prerogative of the prosecution to decide whom to examine and whom not to examine. That apart, in a case of 2006, when the case is posted for judgment, the petitioner came forward with the application that too, fourth time. Already he filed three applications and availed the opportunity.
7.Considering the entire facts and circumstances of this case, the District and Sessions Judge has rightly dismissed the application. This Court does not see any reason to invoke the inherent jurisdiction of this Court under
Section 482 of Cr.P.C.
8.For the aforesaid reasons, this criminal original petition is dismissed. The trial Court is directed to dispose of the case, within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is also dismissed.
To
1.The District & Sessions Judge (EC Act Cases), Thanjavur
2.The I Additional District Munsif cum Judicial Magistrate, Kumbakonam..