Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 569 (MAD)

N. Hentry v. P. Natarajan

2014-02-28

ARUNA JAGADEESAN

body2014
JUDGMENT : Aruna Jagadeesan, J. 1. This revision is directed against the order passed by the learned Judicial Magistrate No. 1, Kuzhithurai dated 23.1.2013 in C.C. No. 149 of 2005 dismissing the petition filed under Section 254(2), Cr.P.C. The complaint is filed under Section 138 of Negotiable Instruments Act against the petitioner. The complainant's case is that on 6.8.2004, the petitioner/accused borrowed a sum of Rs. 2 lakh from the complainant at the complainant's residence to discharge a debt and on the same day, the accused issued a cheque bearing No. 652791 dated 6.12.2004 for a sum of Rs. 2 lakh drawn at State Bank of India, Karungal Branch. The cheque was presented on 6.1.2005 for collection in Tamil Nadu Mercantile Bank at Pallihadi and the same was dishonoured on the ground that insufficient fund. Thereafter, on 1.2.2005, the complainant issued a statutory notice to which the accused sent a reply disputing all the averments stated in the notice. The complainant examined himself as PW-1. Thereafter, the accused wanted to examine defence witnesses and he submitted a list of defence witnesses and filed a petition under Section 254(2), Cr.P.C. praying to the Court to issue summons to those witnesses. The accused wanted to examine 7 witnesses and submitted a list to that effect. The said petition was opposed by the complainant that the witness schedule filed by the petitioner is not related to the case on hand and the same is filed only to drag on the proceedings. The said petition was dismissed by the learned Magistrate on the ground that the petition was filed by the accused only to drag on the proceedings and since the case is pending for arguments it was not open to the accused to file petition under Section 254(2), Cr.P.C. to examine the witnesses stated in the witness schedule. 2. Heard the learned Counsel appearing for the parties and perused the materials available on record. 3. The learned Counsel for the petitioner submits that the grievance of the petitioner is that the learned Magistrate refused to examine the witnesses and held that it is not necessary to examine those witnesses cited by the petitioner and refused to issue summons. He would further submit that the learned Magistrate was not justified in passing the impugned order as it would result in a total destruction of his case. 4. He would further submit that the learned Magistrate was not justified in passing the impugned order as it would result in a total destruction of his case. 4. It is further submitted by the learned Counsel for the petitioner that it has been averred in the complaint that the petitioner/accused borrowed the amount at the complainant's residence on 6.8.2004 and issued the cheque on the same day but the real fact is that the petitioner/accused was in a remote village in Nellur in Andhra Pradesh for his treatment and to rebut the evidence let in by the complainant the witnesses cited by him in the witness schedule are necessary to be examined. The learned Counsel pointed out that the witnesses cited in the list namely 1 and 2 are necessary to prove that the petitioner/accused was in Nellur taking treatment from a private medical practitioner. 5. It is further submitted that the examination of witness No. 2 is necessary as the witness No. 2 had written a letter to the petitioner while he was in Nellur on the date of issuance of cheque. The learned Counsel pointed out that that the complainant in his evidence while he was examined as PW-1 stated that he was a 'A' class contractor and had sufficient funds to advance loan to the petitioner. In order to rebut his evidence that the had no sufficient funds and in fact he had taken loan from the Primary Agricultural Co-operative Bank even in the year 2002 and he is yet to discharge the said loan, the petitioner wanted to examine witness Nos. 3 to 7 cited in the witness schedule. The learned Counsel would submit that it is really very necessary to examine those witnesses and hence shutting out the same would amount to complete denial of justice. 6. On the other hand, the learned Counsel for the respondent pointed out that attempt of the petitioner is only to protract the proceedings and that most of the witnesses mentioned in the witness list are not concerned with the case and their examination would not in any manner be helpful to resolve the controversy between the parties. 7. In case tried summarily by the Magistrate as per Section 262 of Code of Criminal Procedure the procedure specified in Code of Criminal Procedure for the trial of the summon cases shall be followed. 7. In case tried summarily by the Magistrate as per Section 262 of Code of Criminal Procedure the procedure specified in Code of Criminal Procedure for the trial of the summon cases shall be followed. In a case tried as a summons case if the Magistrate does not convict the accused under Section 252 or 253 Cr.P.C. he has to hear the accused and take all such evidence as may be produced in support of the prosecution. He has also to hear the accused and take all such evidence as he produces in his defence. 8. Section 254(2), Cr.P.C. provides that the Magistrate may, if he thinks fit, on the application on the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. The discretion is certainly vested with the Magistrate to consider whether witnesses cited by the accused should all be examined. In a case, where the Magistrate finds that the witness schedule has been filed with the sole purpose of delaying the proceedings or that no meaningful purpose would be served by the examination of the witnesses, it is open to him to decline the request for summoning the witness. 9. The power under Section 254(2), Cr.P.C. conferred on the Magistrate is of wider amplitude than that of the Sessions Judge or Magistrate in a similar situation while trying a Sessions case or a warrant case. Section 233(3), Cr.P.C. relates to a situation where the accused in a Sessions case wants to adduce defence evidence or to produce any document or thing. Sub-section (3) enables the Judge to issue process. Of course it is with a rider. The Sessions Judge can refuse to issue process if he finds that the witness list is filed for the purpose of vexation or delay or defeating the ends of justice. Under Sections 233(2) and 243(2) the power of the Sessions Judge and Magistrate to refuse issuance of process is circumscribed by the three factors mentioned specifically viz vexation, delay or defeating the ends of justice. Thus, in cases not coming under any of the above categories, Sessions Judge or the Magistrate in a trial of warrant cases will have to issue process to the defence witnesses. 10. So far as Section 254(2) is concerned there is no such limitation. Thus, in cases not coming under any of the above categories, Sessions Judge or the Magistrate in a trial of warrant cases will have to issue process to the defence witnesses. 10. So far as Section 254(2) is concerned there is no such limitation. Thus, it can be seen from a reading of Sections 233(2), 243(2) and 254(2) that the Magistrate's discretion as to allowing or refusing an application either by the prosecution or by the accused for issuing summons to any witness directing him to attend or to produce any document before the Court is wider so far as trial of summary cases are concerned. But that does not mean that the Magistrate can act arbitrarily, whimsically or capriciously. It has to be considered on the facts and circumstances of each case. It may not be possible to enumerate in what circumstances the Magistrate can issue process for examining defence witnesses and in what circumstances he should not do it. The situation in any case particularly bearing in mind the onus of proof. In other words, the Court should not scuttle the defence evidence on flimsy grounds. If the Magistrate finds that the witnesses cited have nothing relevant to testify before the Court or if he finds that the witnesses are merely cited with ulterior motive to dodge the proceedings, he can refuse to act. 11. The right of the accused to have his witnesses examined or to have documents produced on his side cannot be denied. The general rule is that an opportunity should be conferred to the accused to adduce his evidence. But he cannot have unfitted principle to prolong the proceedings by adopting delaying tactics. It is always open to the Magistrate to put a stop to it. But in a case where the burden is on the accused, as in this case, the attempt of the accused to establish his defence by defence witnesses cannot be thwarted. Even in a case where the evidence is strong in the prosecution the accused is entitled to rebut it by examining his own witnesses or producing documents which would furnish good material for rebutting the prosecution case. In such a situation that could be preferred by the accused only if he is allowed to adduce defence evidence. 12. Even in a case where the evidence is strong in the prosecution the accused is entitled to rebut it by examining his own witnesses or producing documents which would furnish good material for rebutting the prosecution case. In such a situation that could be preferred by the accused only if he is allowed to adduce defence evidence. 12. The Magistrate cannot take an attitude that the evidence so far adduced by the prosecution or the complaint is strong enough to sustain conviction and no purpose would be served by the examination of the defence witnesses or production of documents. It is useful in this context to refer to the decision of the Hon'ble Supreme Court rendered in the case in Ronald Wood Mathams vs. State of West Bengal, AIR 1954 SC 455 , it has been held thus: "Although the evidence on record may tend to establish a strong case against the accused, he is entitled to rebut and if certain documents would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, would deprive the accused of an opportunity of rebutting it. The accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them." 13. In the present case, the accused, in order to rebut the case of the complainant and also to establish his defence, requires to examine the witnesses cited by him and he has also assigned reasons for their examination as witnesses before the Court which in my view appears to be reasonable and acceptable. 14. In view of the law laid down by the Hon'ble Supreme Court cited supra, I am of the view that the petition filed by the petitioner/accused to examine the witnesses on his side cannot be dismissed and an opportunity should be given to the accused to rebut the evidence of the complainant. In the result, the revision is allowed and the order of the learned Judicial Magistrate No. 1, Kulithurai, dated 23.1.2013 in C.C. No. 149 of 2005 is set aside. In the result, the revision is allowed and the order of the learned Judicial Magistrate No. 1, Kulithurai, dated 23.1.2013 in C.C. No. 149 of 2005 is set aside. The revision petitioner is permitted to adduce defence witnesses and examination of those witnesses shall be completed within a period of three months from the date of receipt of copy of this order.