(Prayer: This Criminal Original Petition filed under Section 528 of BNSS to set aside the order dated 09.10.2025 passed in Crl.M.P.No.13434 of 2023 in STC No.231 of 2023 on the file of the Hon’ble XXV Metropolitan Magistrate Court at Egmore, Chennai and pass such or further orders.)
1. This Criminal Original Petition has been filed seeking to set aside the order of dismissal passed by the learned XXV Metropolitan Magistrate, Egmore, Chennai, in Crl.M.P.No.13434 of 2025 dated 09.10.2025.
2. The petitioners are the accused in S.T.C. No.231 of 2023, pending on the file of the learned XXV Metropolitan Magistrate, Egmore, Chennai. The said case was instituted by the respondent/complainant for the offence punishable under Section 138 of Negotiable Instruments Act. In the said case, the petitioner filed Crl.M.P.No.13434 of 2025 seeking to recall and reopen the defence evidence for the purpose of marking additional documents. The said petition was dismissed by the learned Magistrate. Aggrieved by the same, the present Criminal Original Petition has been filed.
3. The learned counsel for the petitioners would submit that the second petitioner, who is the proprietor of the first petitioner, is a permanent resident of Rajasthan and he was unable to appear before the Trial Court regularly and defence evidence was closed. Thereafter, pursuant to the petition filed by him, he was permitted to examine himself as DW1 on 03.06.2025 and his evidence was subsequently closed. Though the proof affidavit of DW1 was filed before the Trial Court on the said date, the same was not recorded and the documents produced by him were not marked. Therefore, the petitioner/accused may be afforded an opportunity to put forth his defence by adducing oral and documentary evidence.
4. The learned counsel would submit that the petitioner is ready and willing to appear before the Trial Court on the date fixed by the Trial Court without fail and that a time-bound direction may be issued for disposal of the case.
5. Per contra, the learned counsel appearing for the respondent would submit that the petitioner/accused has been repeatedly filing petitions before the Trial Court seeking to reopen the defence evidence and recall DW1, with an intention to protract the proceedings. The case has been pending from the year 2023 and the petitioner/accused has repeatedly dragged on the proceedings by remaining absent on several hearing for one reason or another. Sufficient opportunities had already been granted by the trial Court to the petitioner/accused to adduce evidence on his side, but he failed to avail the same. Only with an intention to protract the proceedings, the petitioner/accused has filed the present petition to reopen the case and recall DW1 and the same was rightly dismissed by the Trial Court.
6. Heard both sides and perused the materials available on record.
7. On a perusal of the orders passed by the Trial Court, it is seen that the case was posted for defence evidence from 25.06.2024. After granting sufficient opportunities, the defence evidence was closed on 24.03.2025. Thereafter, pursuant to the petition filed by the petitioner seeking to reopen and recall the defence evidence, the same was reopened and DW1 was examined on 03.06.2025. Subsequently, the petitioner failed to appear before the Trial Court on several hearings. Thereafter, the defence evidence was closed and the case was posted for arguments.
8. Subsequently, the petitioner/accused filed another petition under Section 348 of BNSS in Cr.M.P.No.9672 of 2025, seeking to recall DW1. The said petition was allowed on 04.09.2025 and DW1 was cross-examined on the same day. Thereafter, when the matter was again posted for arguments, the petitioner once again filed the present petition seeking to reopen defence evidence and recall DW1 and the same was dismissed by the Trial Court.
9. It is true that the petitioner/accused has repeatedly sought reopening of the defence evidence and recall of DW1, and the proceedings have been considerably delayed. However, in a prosecution under Section 138 of Negotiable Instruments Act, the accused is entitled to establish his defence on the basis of the preponderance of probabilities, for which, he may be required to adduce oral and documentary evidence. Section 348 of the BNSS empowers the Court to recall and re-examine a witness where such evidence appears to be essential for a just decision of the case.
10. In the present case, though the conduct of the petitioner in repeatedly seeking reopening of the defence evidence cannot be appreciated, having regard to the nature of the proceedings and the undertaking given by the learned counsel appearing for the petitioner that the petitioner would appear before the Trial Court on the date fixed and would cooperate for the expeditious disposal of the case, this Court is inclined to grant one final opportunity to the petitioner to put forth his defence.
11. Accordingly, this Criminal Original Petition is allowed.
(I) the impugned order passed by the learned XXV Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.13434 of 2023, dated 09.10.2025 is set aside.
(ii) the defence evidence is reopened and the petitioner/accused is permitted to recall DW1 and adduce such further oral and documentary evidence.
(iii) the Trial Court shall fix a specific date for the examination of DW1 and for production and marking of the documents.
(iv) The petitioner/accused shall appear before the Trial Court on the date so fixed and shall cooperate with the proceedings without seeking any adjournment.
(v) the learned XXV Metropolitan Magistrate, Egmore, Chennai, is directed to dispose of S.T.C.No.231 of 2023 as expeditiously as possible, preferably, within a period of one month from the date of closure of the defence side evidence.
(vi) it is made clear that this shall be treated as a final opportunity to the petitioner/accused to complete his defence evidence.
Consequently, connected miscellaneous petition is closed.
