SHIVAKUMAR Vs. PALANISAMY

JUDGEMENT

(1.) THE learned counsel for the petitioner submits that the petitioner has come forward with this petition to set aside the order passed by the learned Judicial Magistrate No. 1, Gobichettipalayam in Crl. M. P. No. 1124 of 2006 in C. C. No. 222 of 2007 dated 10. 03. 2006 dismissing the petition filed under Section 311 Cr. P. C. to recall PW1 for the purpose of cross-examination.

(2.) LEARNED counsel for the petitioner submits that the petitioner is facing trial for the alleged offence under Section 138 of negotiable Instruments Act. It is contended by the learned counsel for the petitioner that since the petitioner's counsel was not well, the petitioner was not able to cross-examine PW1. As a result, the learned magistrate closed the petition on the ground that there was no representation. Learned counsel for the petitioner submits that the cross-examination of PW1 is just and essential in rebutting the presumption contemplated under Section 139 Negotiable of Instruments Act.

(3.) MR. N. Doraisamy, learned counsel appearing for the respondent as legal aid counsel, contended that there is no illegality or infirmity in the impugned order passed by the learned Magistrate. It is contended by the learned counsel for the respondent that even on earlier occasion the petitioner filed the same application under section 311 of Cr. P. C. for recalling PW1 for cross-examination and in spite of the presence of PW1, the petitioner has not chosen to cross-examine PW1.