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2010 DIGILAW 2534 (MAD)

P. Baskar v. J. Murugan

2010-06-25

T.SUDANTHIRAM

body2010
Judgment :- 1. The revision petitioner herein is an accused in C.C.No.298 of 2006, on the file of the Judicial Magistrate IV, Vellore and the respondent herein is the complainant who filed a complaint against the accused under Section 138 of the Negotiable Instruments Act. After questioning under Section 313 Cr.P.C., was over, the petitioner wanted to examine the defence witness and filed a list containing names of seven persons to be examined as witnesses. The petitioner also prayed for issuance of summons to those witnesses. The objection was also filed by the complainant. The learned Judicial Magistrate IV, Vellore passed an order refusing to issue summons to the defence witness. Aggrieved by the order of the learned Judicial Magistrate, the petitioner preferred this criminal revision. 2. The learned counsel for the petitioner submitted that the petitioner had no liability and in order to prove that he wanted to examine seven persons as defence witnesses. According to the petitioner, the cheques were given only as a security to the retiring partners in the business owned by the petitioner. But the cheques have been misused. One of the witnesses cited is one Rajaraman who is the clerk of the complainant’s brother. The learned counsel further submitted that the accused must be given an opportunity to prove his case and the refusal by the learned Magistrate to issue summons to the defence witness caused prejudice to the accused. 3. The learned counsel appearing for the respondent submitted that the case was filed in the year 2006 and the petitioner is playing delaying tactics and the petitioner has not given any specific reasons while praying the court for issuing summons for the defence witness. The petitioner had sought for issuance of summons to seven persons named in the list to be examined as defence witness, only with the ulterior motive of delaying the trial and infact the witness No.1 in the list is not available in India and he is in abroad. 4. The petitioner had sought for issuance of summons to seven persons named in the list to be examined as defence witness, only with the ulterior motive of delaying the trial and infact the witness No.1 in the list is not available in India and he is in abroad. 4. At this juncture, learned counsel for the petitioner submits that all the witnesses shown in the list filed by the petitioner may not be examined as defence witness and as it is now brought to the notice that the witness R. Rajan is not available in India, the petitioner restricts himself to examine only the witnesses 2 to 4 shown in the list filed by him i.e., J. Baskar, M. Ganesh and J. Janakiraman. The learned counsel for the petitioner submitted that it is very much necessary to prove the defence case. The learned counsel also submitted that the petitioner is prepared to examine the defence witness within a period of one month. 5. This court considered the submissions made by both parties and perused the records. 6. The learned Magistrate had refused to issue summons to the defence witness mentioned in the list of witnesses filed by the accused/petitioner, for the reason that the accused was absent for several hearings and for the reason that no application under section 243 Cr.P.C., or no affidavit was filed by the accused. This Court feels that the reasons given by the learned Magistrate are unacceptable. Even if the proceedings have been delayed by the accused, when the trial has reached the stage of examining the accused under Section 313 Cr.P.C., after examining the accuse under Section 313 Cr.P.C, the court should question the accused as to whether he had any defence witness. No separate petition is necessary to be filed by the accused and if the accused says that he is to examine the defence witness, he must produce the list of defence witness. Further the accused cannot be insisted to file any affidavit. Of course, in the list of witnesses, the reason for examining those defence witness may be briefly stated. Further as per Section 254 Cr.P.C, in a trial of summons case by a Magistrate, court is to take all such evidence as produced by the accused in his defence. The accused must be given an opportunity to prove his defence which amounts to a fair trial. 7. Further as per Section 254 Cr.P.C, in a trial of summons case by a Magistrate, court is to take all such evidence as produced by the accused in his defence. The accused must be given an opportunity to prove his defence which amounts to a fair trial. 7. In view of the reasons given above, the order passed by the learned Magistrate refusing to issue summon to the witnesses mentioned in the list of witnesses produced by the accused, is set aside. As it is now agreed by the learned counsel for the petitioner that the petitioner is confining to examine the defence witness only No.2 to 4 mentioned in the list of witness by name Basker, Ganesh and Janakiram, the learned Magistrate is directed to issue summons to those witnesses. 8. The learned Magistrate is also directed to complete the trial within a period of two months from the date of receipt of this order copy. 9. The criminal revision is allowed. Consequently, M.P. No.1 of 2010 is closed.