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2022 Supreme(Mad) 595
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. SIVAGNANAM, J.
Saroja Thirumal and Another – Petitioners
Versus
State Rep. through the Inspector of Police, Kanyakumari – Respondents
Crl. O.P. (MD) No. 12141 of 2022, Crl. M.P. (MD) No. 7671 of 2022
Decided On : 06-07-2022
Advocate Appeared:
For the Petitioner: M. Subashh Babu.
For the Respondent: Suresh Kumar.
The exercise of discretionary power under Section 311 Cr.P.C. should ensure a just decision, fair trial, and the ends of justice, as emphasized by the principles laid down by the Hon'ble Supreme Court.
Headnote:
Recall of Witnesses - Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997 - Section 311 Cr.P.C. - [PW-1 to PW-6, PW-18, PW-19, PW-23] - The court set aside the order passed by the Special Court and directed the recall of witnesses PW-1 to PW-6, PW-18, PW-19, and PW-23 for cross-examination by the petitioners, with a condition to dispose of the case within two weeks from the date of completion of cross-examination.
Fact of the Case:
The petitioners, accused of offences under Sections 109 and 420 IPC and Section 5 of Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, sought to recall witnesses for cross-examination. The trial court had dismissed the recall petition, leading to the filing of the criminal original petition.
Finding of the Court:
The court found that the petitioners had not utilized the opportunity to cross-examine witnesses during the trial, but considering the need for a just decision, directed the recall of witnesses for cross-examination and disposal of the case within two weeks from the completion of cross-examination.
Issues: The issues revolved around the petitioners' request to recall witnesses for cross-examination, the delay in filing the petition, and the need for a just decision in the case.
Ratio Decidendi: The court applied the principles laid down by the Hon'ble Supreme Court in Rajaram Yadav's case, emphasizing the need for just decision, exercise of discretionary power under Section 311 Cr.P.C., and ensuring fair trial and ends of justice.
Final Decision: The criminal original petition was allowed, the impugned order was set aside, and the Special Court was directed to recall witnesses for cross-examination and dispose of the case within two weeks from the completion of cross-examination.
JUDGMENT :
V. SIVAGNANAM, J.
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. praying this Court to set aside the order passed by the learned Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, Madurai, in Cr. M.P. No. 67 of 2022, dated 25.04.2022, in C.C. No. 35 of 2010.
1. This criminal original petition has been filed seeking to set aside the order passed by the learned Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, Madurai, in Cr. M.P. No. 67 of 2022, dated 25.04.2022, in C.C. No. 35 of 2010.
2. The learned Counsel for the petitioners submitted that the petitioners are the accused Nos.2 and 3, the first accused is the SUS Bankers and the fourth accused died. The petitioners herein were charged for having committed offences under Sections 109 and 420 IPC and Section 5 of Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997 and during the trial, out of fifty two witnesses, twenty three witnesses had been cross-examined. But, the witnesses PW-1 to PW-6, PW-18, PW-19 and PW-23, are not cross-examined by the petitioners. In order to cross-examine the said witnesses, the petitioners filed a recall petition under Section 311 of Cr.P.C. in Cr. M.P. No. 67 of 2022, but the same was dismissed by the trial Court on the ground that the witnesses PW-1 to PW-6 were examined in the year 2013, and the remaining witnesses were examined in the year 2017. The petitioners had not taken any steps to cross-examine the witnesses and only to prolong the case, they had not cross-examined the witnesses and dismissed the petition with cost of Rs. 2,00,000/- payable to DLSA, Madurai. Aggrieved by the same, the petitioners filed this petition and further submitted that the petitioners are ready to settle the matter with the witnesses, who deposited the amount. Since the witnesses are not ready to receive the amount, the case is pending and pleaded to give one more chance to the petitioners for cross-examining the witnesses.
3. The learned Government Advocate (Criminal Side) submitted that the case is posted on 08.07.2022, for prosecution of witnesses and pleaded to dismiss this petition as there is no merit since the petitioners are being filed this petition belatedly only to prolong the case.
4. I have considered the matter in the light of the submissions made by both the parties.
5. On a perusal of records, it reveals that the petitioners are accused Nos. 2 and 3 in C.C. No. 35 of 2010, on the file of the Special Court under Tamil nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, Madurai. The petitioners are running a finance company in the name and style of ‘SUS Bankers’ at Thuckalay, they canvassed the public and promised to pay 24% of interest. Believing that, fifty two depositors had deposited in the scheme of Marriage Reinvestment Scheme Deposit (MSRD) and Public Borrowing Monthly Scheme (PBMS). Since the petitioners are not fulfilled the promise made by them, and defaulted in the payment, a complaint has been given and a case had been registered in Crime No. 9 of 2005. After investigation, charge sheet had been filed before the Special Court under Tamil nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, Madurai and the same had been taken on file in C.C. No. 35 of 2010. Then, the witnesses PW-1 to PW-6 were examined in the year 2013, and the remaining witnesses were examined in the year 2017. Even though, sufficient opportunity had been given to the petitioners to cross-examine the witnesses at the time of chief examination, the petitioners did not use the opportunity. Admittedly, this criminal original petition has been filed belatedly. Now, the petitioners are facing the charge of cheating the depositors. In order to place their defence through cross-examination and for the just decision for the case, one more chance may
