Crl.R.C.No.1235 of 2023

and Crl.M.P.Nos.9674 & 9675 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.07.2023

CORAM

THE HONOURABLE MRS. JUSTICE R. HEMALATHA

Crl.R.C.No.1235 of 2023

and

Crl.M.P.Nos.9674 & 9675 of 2023

Meganath Karthick

Proprietor of S.D.Lakshmi & Co.,

... Petitioner

Vs.

C.M.Babu

Proprietor of M/s.CMB Traders

... Respondent

Prayer : Criminal Revision Petition filed under Section 397 r/w. 401 of

Criminal Procedure Code to set aside the order dated 22.06.2023 in

Crl.M.P.No.24531/2023 in S.T.C.No.3072/2023 on the file of the learned

Metropolitan Magistrate, Fast Track Court -I at Allikulam, Egmore and

consequently allow the Crl.M.P.No.24531/2023 in S.T.C.No.3072/2023.

For Petitioner : Mr.M.Velan

ORDER

The present criminal revision petition has been filed by the

accused, challenging the orders dated 22.06.2023 passed in

Crl.M.P.No.24531/2023 in S.T.C.No.3072/2023.

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Crl.R.C.No.1235 of 2023

and Crl.M.P.Nos.9674 & 9675 of 2023

2.The said petition was filed u/s.273 Cr.P.C. to set aside the

order dated 30.05.2023 in S.T.C.No.3072/2023 allowing the memo of the

complaint to consider the Sworn statement of the complainant as chief

examination in the trial proceedings.

3.The respondent/complainant filed a private complaint u/s.200

Cr.P.C. against the accused for an offence punishable u/s.138 of the

Negotiable Instruments Act. The Sworn statement was filed by the

complainant. After summoning the accused and furnishing records

u/s.207 Cr.P.C. the accused was questioned. Since he denied the offence

the case was posted for trial. At the time of trial, the complainant filed a

memo to consider his Sworn statement already filed by him as chief

examination. The said memo was recorded by the Court.

4. The learned counsel for the revision petitioner/accused did

not raise any objection for this. However, he did not cross examine the

complainant on the same day even though he was present in the Court.

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Crl.R.C.No.1235 of 2023

and Crl.M.P.Nos.9674 & 9675 of 2023

Thereafter, the complainant closed his evidence and the case was posted

on 06.06.2023 for questioning of the petitioner / accused under section

313 Cr.P.C. The accused denied of having committed any offences.

Subsequently, he filed Crl.M.P.No.24531/2023 u/s.273 Cr.P.C. stating

that the evidence of the complainant cannot be recorded in the absence of

the accused. The learned trial court judge after considering the rival

submissions of both the parties had observed thus :

"On 30.05.2023 itself learned counsel for the complainant

filed memo to treat the sworn affidavit as chief in the main

case as well as to treat the exhibits already marked as

complainant side exhibits. Said memo was recorded by this

Court. Learned counsel for the accused had not chosen to

cross-examine the complainant by filing petition u/s.145(2)

of NI Act. Learned counsel for the respondent/complainant

endorsed no further evidence accordingly complainant side

evidence was closed. On the day itself learned counsel for the

petitioner/accused had not agitated that in the absence of

accused memo was recorded. Thereafter, case was posted to

06.06.2023 for examination of the accused u/s.313(1)(b) of

Cr.P.C. on the said day too neither the petitioner/accused

nor his counsel made any representation that in the absence

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Crl.R.C.No.1235 of 2023

and Crl.M.P.Nos.9674 & 9675 of 2023

of petitioner/accused, chief was recorded. Thereafter, case

was adjourned to 12.06.2023 and 16.06.2023.

In both hearings accused did not choose to narrate

the same. All of a sudden on 22.06.2023 learned counsel for

the accused filed this petition u/s.273 of cr.P.C. and in

support of the petition averments filed the judgment reported

by the Hon'ble Apex Court passed in Crl.Appeal

No.1306/2021 and poin