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2012 DIGILAW 3587 (MAD)

S. Thangavel v. P. Shanmugam

2012-08-14

A.ARUMUGHASWAMY

body2012
Judgment :- 1. The petitioners have come forward with this Criminal Original Petition to set aside the order passed by the learned Addl. District and Sessions Judge, Fast Track Court No.I, Salem in CRP.No.3/2011 dated 24.03.2011 confirming the order in CMP.No.7508/2010 in C.C.No.71 of 2007 dated 07.12.2010 passed by the learned Judicial Magistrate No.I, Salem. 2. Petitioners are the accused in C.C.No.71 of 2007 on the file of the Judicial Magistrate No.I, Salem under Section 138 and 142 of Negotiable Instruments Act. During the trial the respondent in his cross examination had deposed that the cheque transaction amount of Rs.10,00,000/- is subject to the two payments which was mentioned in the Income Tax Returns. Hence, the petitioners filed an application under Section 91 of Cr.P.C. to issue summon to the Income Tax Officer, Salem to produce the Income Tax Returns of the respondent for the period of two years i.e. from 2006-2007 and 20072008 before the trial Court. The said petition was dismissed by the learned Judicial Magistrate No.I, Salem stating that the respondent/complainant in the counter statement had stated that the transaction between the petitioners and the respondent had not been shown in the Income Tax Returns filed by the respondent during the years 20062007 and 2007-2008. Aggrieved by the order of the learned Judicial Magistrate No.1, Salem, the petitioners preferred Revision Petition before the Additional District & Sessions Judge-Fast Track Court No.I, Salem in CRP.No. 3 of 2011 on the ground that the documents proposed to be summoned are very essential for the petitioners to prove their innocent and to prove the contradictions and to disprove the case of the respondent/complainant. The said Revision Petition was dismissed on the ground that the proposed document of Income Tax Returns of the respondent for the years 20062007 and 2007-2008 are necessary for the disposal of the case and the admission if any made by the respondent during his cross examination with regard to showing the transaction in the Income Tax Account can be relied by the petitioners for drawing adverse inference against the respondent. Aggrieved against the said order, this Crl.O.P. has been filed. 3. The grievance of the petitioners is the documents required by the petitioners are to be covered under Section 139 of the Negotiable Instruments Act to prove the contradictions and they are very essential for the petitioners' defence to prove their innocence. Aggrieved against the said order, this Crl.O.P. has been filed. 3. The grievance of the petitioners is the documents required by the petitioners are to be covered under Section 139 of the Negotiable Instruments Act to prove the contradictions and they are very essential for the petitioners' defence to prove their innocence. The learned counsel for the petitioners relied upon the Judgment reported in 2010(2) Madras Weekly Notes (Cr) DCC 104 in the case of Sethuraman @ Sethuramachandran vs. Subbiah to substantiate that the accused is enrtitled to invoke the provisions Section 138 of the N.I.Act for summoning those documents and if so in no way the complainant may prejudice. Hence he prayed that the documents may be summoned. 4. Even though in the judgment relied on by the petitioners it has been indicated that the accused can produce all such evidence in support of his case and the Magistrate can also on the application of the accused can issue summons to any witnesses, directing him to attend or to produce any document or other thing, with due respect I am not agreeing with the view expressed in the said judgment. The judgment cited by the petitioner is not applicable to the facts of the present case. 5. From the perusal of the records it is seen that the amount involved is Rs.10.00 lakhs. The petitioners/accused pleads that they have have repaid the entire cheque amount of Rs.10.00 lakhs to the complainant. The petitioners have come forward to file the application to sent for the documents to show that the amount paid by them would have been disclosed in the Income Tax Returns filed by the complainant for the years 20062007 and 2007-2008. Instead of sending for the documents from the Income Tax Department the petitioners/accused are expected very well to produce documents along with connected records to prove their burden as to how and where they were keeping Rs.10.00 lakhs to pay the same to the complainant, when it was paid, in which mode the amount has been paid and from which bank those amounts have been withdrawn by way of bank accounts or other documents. Since the petitioners have failed to do so, at this juncture one cannot expect the complainant to do so. The presumption is rebutable one. Since the petitioners have failed to do so, at this juncture one cannot expect the complainant to do so. The presumption is rebutable one. Since the petitioners have not proved and discharged their burden of proof, prima facie I am of the view that this Court has no other option except to come to the conclusion that the petitioner is attempting to drag on the proceedings and hence, at this stage sending for the Income Tax Returns are not necessary. 6. In view of the above facts and circumstances, this Criminal Original Petition is dismissed. Consequently, M.P.Nos. 1 and 2 are closed. Since the case is of the year 2007, the learned Judicial Magistrate is directed to dispose of the same as expeditiously as possible without bearing in mind the observations made in this petition.