GOMATHI Vs. LAKSHMI SARASWATHI FINANCES

JUDGEMENT

(1.) THESE Criminal Original Petitions are filed to call for the records pertaining to the order dated 20. 11. 2006 made in Crl. M. P. No. 4616 of 2006 in C. C. No. 289 of 2004 and Crl. M. P. No. 4615 of 2006 in C. C. No. 354 of 2002 respectively on the file of the Judicial Magistrate No. II, Erode and to set aside the same.

(2.) THE brief facts of the case is as follows: the respondent had filed private complaint in C. C. No. 289 of 2004 and C. C. No. 354 of 2002 on the file of the Judicial Magistrate No. II, Erode against the petitioners, alleging that two cheques for a sum of Rs. 1,00,000/- and rs. 50,000/- were returned unpaid on presentation for collection and inspite of issuance of statutory notice, they have failed to repay the said amount even after receipt of the legal notice. The defence is that there was no transaction between the petitioners and the respondent after the year 1998 and blank cheques were issued as security for the amount borrowed by the petitioners on pronotes in the year 1995 and the petitioners paid interest only upto 1998. So, according to them, the allegation that the cheques were issued by the petitioners on 09. 08. 2002 is false. They would further contend that even if it is assumed that the cheques were issued on 09. 08. 2002, it could be only to discharge to time barred debt, which was not a legally enforceable debt and hence, the provisions of Section 138 of the Negotiable Instruments Act does not attract. According to the petitioners that the respondent/pw-1 has admitted in his cross-examination that there was no transaction after the year 1998 and in order to fill up the lacuna, when the case was posted for arguments, the respondent has filed the petition to recall PW-1 to mark some of the receipts alleged to have been issued by the respondent for payments made by the petitioners. It is submitted that inspite of their objection, the learned Magistrate has allowed the petition and the same is challenged before this Court

(3.) MR. I. C. VASUDEVAN, learned counsel appearing for the petitioners would contend that Section 311 of the Code of criminal Procedure cannot be invoked to fill up the lacuna in the complainant's case at the fag end of the trial and failing to produce those documents at the time when the respondent let in evidence would lead to an inference that those documents are a forged one. He would submit that the learned Magistrate has allowed the petition without considering whether those documents are relevant or not to decide the case without considering the admission made by the respondent that there was no transaction after the year 1998. In support of his contention, he has placed reliance on the decision of this Court in the case of M/s. DANDY knit GARMENTS v. M/s. SUBIKSHA SPINNERS (P) Limited. , reported in 2000 crl. L. J. 624 wherein, it is held that failure of prosecution to conduct the case with care cannot be a ground to rectify such laches by recourse to Section 311 of the Code of the Criminal Procedure, as it would cause prejudice to the accused.