O R D E R

These Criminal Original Petitions are filed challenging the order passed by the learned Judicial Magistrate No.II, Erode in five private complaints arising out of Section 138 of Negotiable Instruments Act.

2. The short point canvassed in these Criminal Original Petitions is that the power agent of the complainant after filing the proof affidavit and examined as PW.1, fell sick and he was not in a position to submit himself to cross examination. For that reason, the complainant had taken out an application to eschew the evidence of Muralidaran, who was examined as P.W.1 and to substitute another power agent Kumaresan, that application was dismissed by the learned Judicial Magistrate. Thereafter, the applications were filed seeking the Principal himself to be examined, scraping the evidence of P.W.1 Muralidaran and give fresh evidence. These applications were entertained and therefore aggrieved by that, the present Criminal Original Petitions filed on the ground that the evidence of Muralidaran examined as P.W.1 cannot be scraped while the Court has already held that the evidence cannot be eschewed by couching the evidence differently by subsequent applications filed in Crl.M.P.Nos.8704, 8706, 8707, 8709 &9594 of

2019 had been allowed.

3. The learned counsel appearing for the defacto complainant / respondent states that there is no error in the order of the learned Judicial Magistrate allowing the complainant himself to adduce evidence in view of the disability incurred to the power agent and who was not cross examined by the accused while he was present. Furthermore, the learned counsel would submit that subsequently, the said PW.1 Muralidaran has died and the complainant had himself mounted the witness box and adduced evidence and he was also cross examined by the accused. Therefore, nothing survives in these petitions.

4. This Court on considering the fact that the power agent through whom the complaint filed is dead. There is no legal impediment for the complainant to pursue the complaint. The trial Court has rightly permitted the complainant to be examined as witness and the trial is almost completed now. As far as the deposition of Muralidaran examined as PW.1, since he was not subjected to cross examine and now he is dead, the chief examination is bound to be eschewed. However the sworn statement given at the time of taking cognizance which requires no cross examination will survive and stands and the counsel for the accused is always at liberty to highlight the contradiction in the sworn statement of the power agent.

5. With these observations, these Criminal Original Petitions are disposed of. Consequently, the connected Criminal Miscellaneous Petitions are also closed.

26.08.2022 Index: Yes/No Speaking Order/Non Speaking Order rpl To The Judicial Magistrate No.II, Erode.

Dr.G.JAYACHANDRAN, J.

rpl and Crl.M.P.Nos.17039 to 17041, 17044 & 17046 of 2019

26.08.2022