ORDER

The learned Counsel for the Petitioner sought maintainability of this petition. He also relied on the reported ruling in the case of K.Soundararaj Vs State through, The Deputy Superintendent of Police, Vigilance and Anti Corruption, Tirunelveli reported in CDJ 2023 MHC 1167 and in the case of K.Sakthivel Vs M/s.Creative Tex Chem India Ltd., Rep by its Managing Director, Mr.Ashok M.Bhatt.

2. The arguments of the learned Counsel is based on Section 33 of the Indian Evidence Act. The facts of the reported ruling is different. In the earlier case, the evidence of the power of attorney was eschewed, whereas here is the case where the complainant himself as P.W.1. had let in evidence and was not cross examined by the accused who is facing the case under Section 138 of Negotiable Instruments Act. During COVID-19 lockdown, the Complainant/ P.W.1 died. Therefore, the accused was unable to cross examine him. Now, the case under Section 138 of NI Act had been prosecuted by the son of the Complainant. Therefore, the accused has come before this Court seeking to eschew the evidence of the Complainant as P.W.1 during his life time and instead seeking this Court to examine the son of the Complainant. The said line of arguments of the learned Counsel for the Petitioner/Accused is contra to the reported ruling of the Hon'ble Supreme Court in the case of Vinod Kumar Vs State of Punjab reported in (2015) 1 MLJ (Crl) 288 (SC), wherein the Hon'ble Supreme Court insisted all the Trial Courts in the country that witnesses in the Court while deposing the evidence, shall be cross examined then and there. Invariably, in all criminal trials whether summary trial or warrant trial or sessions trial, the accused who faced the charges used methods to delay the trials, as the accused are aware of the outcome of the trial. Also, in the Criminal Justice system followed in our country, the lawyers were depending upon the accused or engaged by the accused on memo of appearance, therefore there is no liability or accountability on the lawyers appearing in criminal cases, whereas in civil cases, the members of the Bar filed vakalat, which is nothing but power of attorney given by the accused. Therefore, the Court cannot insist accountability on the Counsel who appear for the accused through memo of appearance. Invariably, in cases, particularly the cases involving cheatsing, fraud, which are based on the documents, the Counsels who defend the accused take time for cross examination. There are exigencies, when the evidence of the witnesses had been recorded in the examination of chief, when they are deferred, subsequently due to very many circumstances, the witnesses may be dead or even if alive, may not be able to attend the Court. Under those circumstances, the valuable defence of the accused is lost. He/she cannot complain that he had lost the valuable right of defence to cross examine the witnesses. When the accused reserves his right to cross examine the witnesses, he/she is aware of the risk when the evidence had been recorded before the Trial Court. Therefore, it is for the respective Trial Judges to consider whether to erase the evidence or to proceed with the trial, without affording opportunity to the accused to cross examine the witnesses.

3. It is to be noted in an earlier case arising from Kanniyakumari, where the prosecutrix was examined till the sessions case reached the stage of Section 313 Cr.P.C., questioning the accused, who did not exercise the right of cross examination. Subsequently, when he filed a petition under Section 311 Cr.P.C, the learned Sessions Judge dismissed the petition under Section 311 Cr.P.C., in the light of the reported ruling of the Hon'ble Supreme Court which was circulated throughout India to all the Trial Judges in the case of Vinod Kumar Vs State of Punjab reported in (2015) 1 MLJ (Crl) 288 (SC). Aggrieved by the dismissal of 311 Cr.P.C petition by the learned Sessions Judge, Kanniyakumari, the accused preferred Crim