The court clarified that both parties' absences impact the right to cross-examination and provided an opportunity for the petitioner to proceed therein.

ORDER

The present petition has been by the accused in C.C.No.126 of 2021 on the file of the Judicial Magistrate, Aruppukkottai wherein the petition filed by the accused person under Section 311 of Cr.P.C has been dismissed.

2.The complainant was examined as PW1 on 03.03.2023 and Exs.P1 to P5 were marked. Thereafter, the accused has not chosen to cross examine the respondent and the petitioner has filed Cr.M.P.No.1316 of 2023 under Section 311 Cr.P.C to recall the complainant. The said petition was allowed on 12.07.2023 on payment of cost. The cost was paid. Thereafter, the accused person has not chosen to cross examine the complainant and therefore, again the evidence on the side of the complainant was closed on 19.07.2024.

Thereafter, the present petition in Crl.M.P.No.430 of 2024 has been filed.

3.The trial Court has dismissed the application on the ground that after payment of cost, the petitioner/accused person has not chosen to cross examine the complainant on 30.08.2023, 05.10.2023, 10.11.2023, 29.12.2023, 15.02.2024, 21.03.2024, 16.05.2024 and 12.06.2024. Finally, it was posted on 14.07.2024 and even on that date, he had not cross examined the complainant. Therefore, the evidence was closed on 19.07.2024. On the said ground, the petition came to be dismissed.

4.The learned counsel appearing for the petitioner submitted that out of

7 occasions, the complainant himself was not present and in such circumstances, he was not in a position to cross examine the complainant.

5.The learned counsel appearing for the respondent/complainant submitted that despite several opportunities were granted to the petitioner, he has not chosen to cross examine the complainant. In fact, the complaint is pending from the year 2021 onwards.

6.Heard both sides and perused the material records.

7.The petition filed by the petitioner under Section 311 of Cr.P.C was allowed on 12.07.2023 on payment of cost of Rs.2,000/-. The petitioner has paid the cost on 26.07.2023. Thereafter, the complainant had been absent on 05.10.2023, 10.11.2023, 29.12.2023, 15.02.2024 and 12.06.2024. The complainant was present on 21.03.2024, 16.05.2024 and 19.07.2024. Therefore, it is clear that the complainant was also absent on many occasions after the cost was paid by the accused person under Section 311 of Cr.P.C.

8.In order to provide a chance to the petitioner, the order impugned in the petition is hereby set aside and the petitioner is directed to complete the cross examination on 09.04.2026. In case, if the cross examination is not conducted on 09.04.2026, due to the fault on the part of the accused person, no further chance will be granted.

9.This Criminal Original Petition stands allowed with the above said direction. Consequently, connected miscellaneous petition is closed.