The limitations on recalling witnesses and the abuse of court process in filing repetitive petitions to delay proceedings.

ORDER :

(Common Prayer: Criminal Original Petitions filed under Section 482 of Cr.P.C. praying to set aside the order dated 10.01.2019 passed in memo dated 20.12.2018 in STC.No.394, 413, 562, 166, 412, 415, 410, 453, 393, 454, 511, 423, 563 and 424 of 2007 and to set aside the order dated 06.09.2010 passed in CMP.No.2586, 2587, 2589, 2590, 2593, 2592, 2588, 2595, 2594, 2596, 2597, 2591, 2598, 2599 of 2010 in STC.No.393, 394, 413, 454, 412, 511, 423, 562, 563, 415, 424, 410, 453 & 166 of 2007 on the file of the Judicial Magistrate No.II, Metturdam.)

1. These petitions have been filed to set aside the order dated 10.01.2019 passed in memo dated 20.12.2018 in STC.No.394, 413, 562, 166, 412, 415, 410, 453, 393, 454, 511, 423, 563 and 424 of 2007 on the file of the Judicial Magistrate No.II, Metturdam and to set aside the order dated 06.09.2010 passed in CMP.No.2586, 2587, 2589, 2590, 2593, 2592, 2588, 2595, 2594, 2596, 2597, 2591, 2598, 2599 of 2010 in STC.No.393, 394, 413, 454, 412, 511, 423, 562, 563, 415, 424, 410, 453 of 2007, 166 of 2008 on the file of the Judicial Magistrate No.II, Metturdam.

2. Mr.A.K.Kumaraswamy, learned Senior Counsel appearing for the petitioners submitted that in all the cases, the petitioners are accused in STC.No.394, 413, 562, 166, 412, 415, 410, 453, 393, 454, 511, 423, 563 and 424 of 2007 on the complaint lodged by the respondent for the offences punishable under Section 138 of NI act. In all the cases, the evidence of the complainant was completed and after questioning under Section 313 of Cr.P.C., the accused were examined as defence side witness, DW1. At that juncture, the petitioners changed their counsel and filed petitions to recall PW1 under Section 311 of Cr.P.C. for further cross examination.

2.1 He further submitted that while preparing the notes for the case, the new counsel on record came to understand that the bank transactions were manipulated by the respondent to make it appear that the loan transactions were failed to elicit in the cross examination of PW1 which was realised by the petitioners when the bank accounts were compared with the evidence of PW1. In fact the respondent did not lend money to the petitioners. The entire transactions were manipulated by the respondent by transfer of funds from one account to other account. In order to discharge the burden of proof, the petitioners wanted to further cross examine PW1. Therefore the petitioners filed petitions under Section 311 of Cr.P.C. Unfortunately, the trial court dismissed the petitions for the reason that PW1 was already cross examined and the matter is posted for further witnesses of defendant side evidence. Aggrieved by the same, the petitioners filed these petitions and this Court by order dated 20.01.2011, allowed the petitions and directed the trial court to recall PW1 on a specific date and the petitioners were permitted to cross examine PW1 on the same day without asking any further adjournments. Aggrieved by the same, the respondent preferred SLP before the Hon'ble Supreme Court of India on the ground that the respondent was not given opportunity of hearing before this Court. The Hon'ble Supreme Court of India by order dated 04.01.2012, allowed the appeals filed by the respondent and remitted the cases to this Court for fresh consideration and for passing an appropriate order after hearing both sides in accordance with law.

2.2 He further submitted that after the Hon'ble Supreme Court of India remitted all the matters for fresh hearing, after giving opportunities to the respondent herein, all the bundles were misplaced by the Registry of this Court. In the meanwhile, the trial court also pressed for proceeding with the trial. Therefore the petitioners filed memo on 20.12.2018 before the trial court and prayed for issuing summon to the witnesses mentioned in the memo as defence witnesses. The trial court by order dated 10.01.2019, rejected the memo for the reason that the memo is filed only to drag the proceedings, that