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2013 DIGILAW 31 (MAD)

C. Sajit Lovely v. V. Yesu Rajan

2013-01-02

M.VENUGOPAL

body2013
Judgment :- 1. The Revision Petitioner/Accused has focused the present Criminal Revision Petition as against the order dated 9/11/2012 in Crl.M.P.No.7202 of 2011 in S.T.C.No.1309 of 2011 passed by the Learned Judicial Magistrate No. I, Kuzhithurai in dismissing the petition filed by the Revision Petitioner/Petitioner under Section 245 (2) of Cr.P.C. 2. The Learned Judicial Magistrate No. I, Kuzhithurai, while passing the impugned order dated 9/11/2012 in Cr.M.P.No.7202 of 2011 in S.T.C.No.1309 of 2011 has inter alia observed that “... Anyhow as rightly pointed out by the Respondent/Complainant, the allegations stated by the Petitioner/Accused in this petition could be decided only after a full fledged trial. The truth and the veracity of the above averments cannot be decided at this stage etc.,” and resultantly, dismissed the petition for discharge. 3. Assailing the correctness of the dismissal of an order passed by the trial Court in Crl.M.P.No.7202 of 2011 in S.T.C.No.1309 of 2011 dated 9/11/2012, the Learned Counsel for the Petitioner/Accused strenuously contends that the trial Court should have come to the conclusion that a Civil Suit in O.S.No.226 of 2011 is pending on the file of the Learned Additional District Munsif, Poonamallee, wherein the Respondent/ Complainant is arrayed as Second Defendant. 4. Expatiating his submissions, it is the contention of the Learned Counsel for the Petitioner/Accused that the trial Court has failed to note and appreciate that one Joymon, S/o. Jessiah of Parvathipuram, Nagercoil K.K. District is well known to the Respondent/Complainant, which will be evident from the Civil Proceedings in O.S.No.226 of 2011. 5. Yet another plea taken on behalf of the Petitioner/Accused is that the trial Court has failed to appreciate that the Respondent/Complainant and Joymon acted hand in glove and played fraud upon the Court by pleading ignorance of their close friendship. 6. The prime argument projected by the Petitioner/Accused is that the Bank account of the Petitioner/Accused has been closed three years back and the cheque is a stale cheque and in any event, the impugned cheque dated 18/9/2010 is not supported by any consideration. 7. At this juncture, this Court makes an useful and pertinent reference to the averments made by the Revision Petitioner/Accused in Cr.M.P.No.7202 of 2011 for better and fuller appreciation of the merits of the matter in issue. 8. 7. At this juncture, this Court makes an useful and pertinent reference to the averments made by the Revision Petitioner/Accused in Cr.M.P.No.7202 of 2011 for better and fuller appreciation of the merits of the matter in issue. 8. In Cr.M.P.No.7202 of 2011, the Revision Petitioner/Petitioner (before the trial Court), has averred categorically that he is having financial transaction with one J. Joymon, S/o. S. Jessiah of Parvathipuram, Nagercoil, K.K. District and that now he is residing at Ramapuram, Chennai for the last few years and when Joymon was at Nagercoil, he was working in a cable network named “Web T.V.”, Marthandam and during that time, he gave three signed blank cheques, signed blank Rs.500/- stamp paper and blank signed promissory note as security to JoyMon. Further, it is stated that the entire transaction with him was settled long back and paid the amount in cash and during that time, he promised to return the cheques, stamp paper and promissory note, but be failed to do so. Hence, he contacted the said Joymon a number of times and warned him to return the above cheque, promissory note and signed blank stamp paper etc. 9. More significantly, the Petitioner/Accused has come out with a specific averment in Cr.M.P.No.7202 of 2011 that out of the said criminal intention, the said Joymon colluded and conspired with the complainant and the complainant is now acting as Benami of Joymon. The complainant with mala fide intention is to intimidate the Petitioner for the purpose of extracting money from him and also his bank account was closed three years back. Apart from the above, the Petitioner/Accused has referred to the pending Civil Suit in O.S.No.226 of 2011 on the file of the Learned District Munsif, Poonamallee, Chennai against the complainant Yesurajan and Joymon. 10. In effect, the sum and substance of the contention of the Petitioner/Accused is that he never borrowed any sum from the Petitioner/Accused and has not issued any cheque dated 18/9/2010 or to any other date. Furthermore, there is no monetary transaction between the complainant and the Petitioner. Furthermore, the cheque in issue dated 18/9/2010 is not supported by any consideration. 11. Furthermore, there is no monetary transaction between the complainant and the Petitioner. Furthermore, the cheque in issue dated 18/9/2010 is not supported by any consideration. 11. In the counter filed by the Respondent/Complainant, it is stated that only after filing S.T.C.No.1309 of 2011 by the Complainant, the Petitioner/Accused with a view to escape from the clutches of law has instituted Civil Suit in O.S.No.226 of 2011 on the file of the Learned District Munsif, Poonamallee, Chennai against the Complainant and the said Judicial Magistrate and also that the suit is pending trial. 12. On going through the respective pleadings and upon hearing the arguments projected on both sides, the trial Court has ultimately dismissed Cr.M.P.No.7202 of 2011 on 9/11/2012 holding that the truth and veracity of the averments made in the petition etc., could be decided only after full fledged trial and it cannot be decided at the stage of filing of Cr.M.P.No.7202 of 2011. 13. It is not in dispute that the Respondent/Complainant has firstly initiated S.T.C.No.1309 of 2011 by filing the necessary complaint under Section 138 of the Negotiable Instruments Act, 1881. Only, thereafter, the Petitioner/Accused has filed a Civil Suit in O.S.No.226 of 22011 on the file of the Learned Additional District Munsif, Poonamallee, wherein the Respondent/Complainant and one Joymon are arrayed as necessary parties. Admittedly, the said civil suit is pending for final adjudication. 14. It is to be noted that the Learned Judicial Magistrate can make an order of discharge even without recording the prosecution evidence as per decision HARI SADAN DEB Vs. DULAL DEB 1991 Crl.L.J at page 2800. Further more, there is no power vested in the trial Court to discharge an accused person after being charged as per decision S.K.SINHA Vs. S.K.SHINGAL 1987 (1) Crimes at page 842 (Delhi). 15. Added further, at the time of framing charge, what is required is muchless than what is required at the end of the trial or to prove the charge as per decision JACOB THOMAS Vs. THE ASSISTANT COLLECTOR OF CUSTOMS {1988 (2) Crimes – 900 at page 902 (Ker.). Moreover, in the decision RAVI LUNIA M.D.M/s. MOHINI AUXI CHEM PVT LTD AND ANOTHER Vs. STATE OF UTTAR PRADESH AND ANOTHER {1994 (3) Crimes – 76 (All.), it is held that “the fact that civil liability also flows from the occasion, the accused cannot claim discharge.” 16. Moreover, in the decision RAVI LUNIA M.D.M/s. MOHINI AUXI CHEM PVT LTD AND ANOTHER Vs. STATE OF UTTAR PRADESH AND ANOTHER {1994 (3) Crimes – 76 (All.), it is held that “the fact that civil liability also flows from the occasion, the accused cannot claim discharge.” 16. As far as the present case is concerned, on a careful scrutiny of the averments, counter averments made by the respective parties, this Court comes to an inevitable conclusion that the merits of the matter viz., factual and legal pleas raised by the parties can be looked into/gone into by the trial Court at the time of final hearing of S.T.C.No.1309 of 2011, only during the time of final hearing of the main case in S.T.C.No.1309 of 2011, the respective parties will get necessary opportunities to let in oral and documentary evidence to prove or disprove the version or to substantiate their point of view in the case. In regard to the closure of the Bank account of the Petitioner/Accused three years back and also that the impugned cheque dated 18/9/2010 is not supported by any valid consideration etc., are all matters to be gone into by the trial Court at the time of final hearing of the main case in S.T.C.No.1309 of 2011. Ordinarily, the presumption is that the Negotiable Instruments Act is supported by a valid consideration, of course the said presumption is a rebuttable one in law. It is open to the Petitioner/Accused (Defendant or Plaintiff in a case to prove before appropriate/Competent Court of Law to the effect that the Pronote/Cheque in issue is not supported by any valid consideration. In this regard, it is open to the Petitioner/Accused to let in oral or documentary evidence and also by placing circumstantial evidence to the satisfaction of the Court. The presumption that can be drawn and the advantages that can be availed off by the Petitioner/Accused under Section 114 (g) of the Act are all matters to be looked into by the trial Court only during the trial of the main case in S.T.C.No.1309 of 2011. The presumption that can be drawn and the advantages that can be availed off by the Petitioner/Accused under Section 114 (g) of the Act are all matters to be looked into by the trial Court only during the trial of the main case in S.T.C.No.1309 of 2011. In Law, it is open to the holder of the cheque to fill up the writings of a cheque and whether the same is a inchoate instrument under Section 20 of the Negotiable Instruments Act etc., are all matters that can be agitated or raised by the Petitioner/Accused before the trial Court and it is upto the trial Court to evaluate merits and demerits of the matters in issue between the parties encircling the case and in this regard, based on the oral and available material on record, it is for the trial Court to appreciate the matters in right earnest and to render a finding in a dispassionate manner uninfluenced with any of the observations made by this Court in this revision. 17. Be that as it may, on an overall assumption of the facts and circumstances in an integral fashion and also this Court taking note of the fact that the Petitioner/Accused and the Respondent/Complainant have come out with averments and counter averments which in the considered opinion of this Court are to be gone into by the trial Court only during the final hearing of the main case in S.T.C.No.1309 of 2011 and at the present stage, the Petitioner/Accused is not entitled to project Cr.M.P.No.7202 of 2011 under Section 245 (2) of Cr.P.C., and in this regard, this Court without expressing any opinion on the merits and demerits of the matter, disposes Criminal Revision Petition by observing that the trial Court, while dismissing the Cr.M.P.No.7202 of 2011 dated 9/11/2012 has not committed any impropriety or illegality in the eye of law while dismissing the said petition. Consequently, this Criminal Revision Petition fails. 18. In the result, this Criminal Revision Petition is dismissed. Consequently, the order passed by the trial Court in Cr.M.P.No.7202 of 2011 is affirmed by this Court as assigned in this revision. It is made clear that the dismissal of the Criminal Revision Petition will not preclude the parties to raise all factual and legal pleas available before the trial Court at the time of trial of S.T.C.No.1309 of 2011. Consequently, the order passed by the trial Court in Cr.M.P.No.7202 of 2011 is affirmed by this Court as assigned in this revision. It is made clear that the dismissal of the Criminal Revision Petition will not preclude the parties to raise all factual and legal pleas available before the trial Court at the time of trial of S.T.C.No.1309 of 2011. Further, it comes to be known that in S.T.C.No.1309 of 2011, on 15/12/2012, the Complainant has been present and the Accused (Revision Petitioner) has remained absent and as such, a Petition under Section 317 of the Criminal Procedure Code has been filed and the same has been allowed by the trial Court and that the matter has been posted to 3/1/2013. From 3/1/2013, the matter has been adjourned to 5/1/2013 for questioning the Petitioner/Accused. In the circumstances, this Court deems it appropriate to direct the Learned Judicial Magistrate No. I, Kuzhithurai to dispose of the main case S.T.C.No.1309 of 2011 within a period of three months from the date of receipt of the copy of this order and to report compliance to this Court without fail. Consequently, the connected Miscellaneous Petition is closed.