ALMEDIA ALI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This petition under Sec. 482 of Criminal Procedure Code is to quash the proceedings pending trial in C.C.No.4989 of 1984 on the file of the XI Metropolitan Magistrate, Saidapet, Madras. 15.

(2.) The second accused is the petitioner herein. One K. Srinivasan, a Sri Lanka refugee gave a complaint against first accused A.T. Shanmugharm and second accused A.D. Almeida for alleged offences under Sec.420 read with 34, I.P.C. It was alleged in the complaint that Al A.T. Shanmugham and A-2 A.D. Almeida paid a sum of Rs. 1,25,619.20 from the funds provided exclusively by the complainant and cleared 25 tonnes out of 100 tonnes of imported Green Moong. On 8.3.1984, A.T. Shanmugham and A.D. Almeida sold the consignment through M/s. Madras Mercantile No.20, Strotten Muthiah Mudali Street, Madras and A.T. Shanmugham and A.D. Almeida collected the consideration through cheque for Rs. 1,25,305.30 on 7th May, 1984. After collecting the cheque A. Shanmugham and A.D. Almeida instead of depositing it in account of the complainant in the Indian Bank, Harbour Branch, Madras, cheated the complainant by opening another account in State Bank of Hyderabad, Mylapore, Madras 600004. On 8th May, 1984 in their own joint name and withdraw the money and misappropriated the entire amount with the criminal intention to cheat the complainant. The complaint was investigated by Central Crime Branch Police and charge sheet was filed before the XI Metropolitan Magistrate, Saidapet, Madras, for the alleged offences under Secs.425 and 420 read with 34, I.P.C. The trial before the XI Metropolitan Magistrate started. P.W. 1 was examined and he was partly cross examined by counsel for first accused. On 6.5.1986, the second accused filed an application for summoning certain documents, such as ledger, pass book, audit statement and bills of lading relating to Sri Venkateswara General Agencies in possession of first accused for the purpose of effectively cross-examining P. W. 1. The said petition was heard by the learned XI Metropolitan Magistrate. The learned XI Metropolitan Magistrate dismissed the petition on 7.11.1986 on the grounds that second accused was a partner of Sri Venkateswara General Agencies and as the said documents called for related to their own partnership firm, the accused themselves can produce the same. It was not necessary to mark them through P.W. 1. Subsequently, the trial was adjourned for several days from 27.11.1986 for cross-examination of P. W. 1. However P.W. 1 was not present for cross examination. On 21.7.1987, sub-poena was issued calling P.W. 1 to be present on 21.8.1987. Again on 21.8.1987, P.W.1 was not present. Once again, sub-poena was issued to P.W. 1. The case was posted on 22.9.1987. Even on 22.9.1987, P. W. 1 was not present. Therefore on 29.10.1987, the learned Magistrate issued non-bailable warrant for production of P.W. 1. In spite of issue of non-bailable warrant, P.W. 1 was not present on the next day for trial i.e. on 2.12.1987. The learned Magistrate, therefore, closed the evidence of P.W. 1 and directed issue of sub-poena to other witnesses and the case was adjourned for several days. P.Ws. 2 to 7 were not produced in spite of the issue of sub-poena. Therefore, on 25.10.1988, the learned Magistrate issued final notice to P.Ws. and subpoena was issued and posted the matter on 8.12.1988. In spite of final notice for P.Ws. 2 to 8 to be present, the witnesses were not present and therefore, the prosecution closed their evidence. The matter was adjourned to 3 1.1.1989.

(3.) It is submitted by Mr. G. Gopinath, learned counsel for the petitioner that the second accused was not given an opportunity to cross-examine P.W. 1 and as such, no reliance can be placed on the evidence of Chief-examination of P. W. 1 to prove the case against second accused. It is further submitted that in spite of several efforts made by the prosecution including the issue of non- bailable warrant for production of P.W. 1, he was not produced before the court for cross examination by the second accused and the whereabouts of P.W. 1 are not known. Therefore, no purpose will be served by prolonging the trial proceedings and the proceedings as far as the second accused is concerned ought to be quashed by this Court. In this connection, the learned counsel referred to Sec. 138 of the Indian Evidence Act, 1872. The learned counsel submitted that no evidence affecting a: party is admissible against that party unless that party has been given an opportunity to cross-examine the witness and the said common law principle is implied in Sec.138 of the Evidence Act. In support of the said contention, learned counsel cited the ruling in Baliram Tikaram Marathe and others v. Emperor.