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2023 DIGILAW 1363 (AP)

Dodla Rambabu v. State of Andhra Pradesh

2023-10-03

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT 1. Heard Sri Jangam Varun Roy, learned counsel for the petitioner/accused; Sri Siva Prasad Reddy Venati, learned counsel for the respondent No.2/complainant and Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor representing for respondent No.1/State. 2. This criminal petition is filed under Sec. 482 of the Code of the Criminal Procedure, 1973 (for brevity "CrPC") to quash the Order, dtd. 30/12/2019 rendered by Principal District and Sessions Judge, Nellore in Criminal Revision Petition No.51 of 2019. 3. The contention of the learned counsel for the petitioner is that the Order of the learned Sessions Judge in Criminal Revision Petition No.51 of 2019, dtd. 30/12/2019 was perverse and against the facts of the case. 4. Learned counsel for the respondent No.2/complainant would submit that the complainant in the complaint itself has taken specific plea that the complainant"s younger brother Dontamsetty Srinivas Kumar and the complainant are members of joint family and the accused availed loan from the joint family and executed promissory notes in favour of the complainant"s younger brother and to discharge the same, accused issued cheque in favour of the complainant and the cheque was dishonoured due to insufficient funds in the account of the accused and therefore, the complaint was filed under Sec. 138 of the Negotiable Instruments Act, 1881 (for brevity "the Act") and the case is at the stage of complainant"s evidence and therefore, the complainant produced the promissory notes executed by the accused in favour of the complainant"s younger brother to establish the fact that there was a legally enforceable debt and in the said circumstances, the impugned Order of the learned Sessions Judge is sustainable in law. 5. Now the point that arises for determination is: "Whether the impugned Order, dtd. 30/12/2019 passed by the Principal Sessions Judge, Nellore in Criminal Revision Petition No.51 of 2019 suffers from any error, illegality, impropriety and irregularity requiring this Court to quash the same?" 6. 5. Now the point that arises for determination is: "Whether the impugned Order, dtd. 30/12/2019 passed by the Principal Sessions Judge, Nellore in Criminal Revision Petition No.51 of 2019 suffers from any error, illegality, impropriety and irregularity requiring this Court to quash the same?" 6. P O I N T: The complaint in the case was filed by the respondent No.2/defacto-complainant for the offence punishable under Sec. 138 of the Act, alleging that there were business transactions between the accused and complainant"s younger brother and also with the complainant and the accused obtained a loan of Rs.5, 00, 000.00 from the complainant"s younger brother and executed two (02) promissory notes for a sum of Rs.2, 50, 000.00 each and later, the accused issued a cheque on 28/9/2016 for a sum of Rs.5, 00, 000.00 drawn on Union Bank of India in the name of complainant for discharging the amount due under the promissory notes executed in favour of the complainant younger brother, who are members of the joint family and the cheque issued by the accused was dishonoured due to insufficient funds and therefore, after complying the requirements as laid down under Sec. 138 of the Act, the complainant filed the case before the learned Magistrate for the offence punishable under Sec. 138 of the Act. 7. In the light of above rival contentions Chapter XX, Sec. 254 CrPC which deals with the procedure when accused is not convicted either under Sec. 252 CrPC or 253 CrPC in a summons case triable by Magistrates is relevant. It is extracted as under: Sec. 254: Procedure when not convicted. (1) If the Magistrate does not convict the accused under Sec. 252 or Sec. 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court. 8. (3) The Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court. 8. Sec. 254 (1) CrPC., would speak that if the Magistrate does not convict the accused under Sec. 252 or 253, he/she shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and to hear the accused and take all such evidence as he produces in his defence. So, it speaks that all such evidence as may be produced in support of the prosecution be received during the trial. It is an established principle in Law of Evidence that evidence includes both oral and documentary. 9. To arrive just decision of the case, similar provision is there in Chapter XIX relating to trial of warrant-cases by Magistrates, in which Sec. 242 CrPC is as under: 242. Evidence for prosecution: (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Sec. 241, the Magistrate shall fix a date for the examination of witnesses: [Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.] (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. 10. Similar provision is also there in Chapter XVIII relating to trial before a Court of Session, in which Sec. 231 CrPC is as under: 231. Evidence for prosecution: (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further crossexamination. 11. Evidence for prosecution: (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further crossexamination. 11. Sec. 311 CrPC relates to power of the Court to summon any person as a witness, or examine any person in attendance, though not summon, as a witness, or recall and re-examine any person already examined "if his evidence appears to it to be essential to the just decision of the case." This power was conferred on the Court in the general provisions as to inquiries and trials in Chapter XXIV of the Code. Whereas Sec. 231, 242, 244 and 254 CrPC relates to the procedure of taking evidence during the trial, conducted by a Court of Session and by Magistrate. 12. Therefore, in my considered opinion, as long as the trial in sessions cases, warrant cases or summons cases is at the stage of evidence for prosecution/complainant, as laid down in the above Sec., the Sessions Judge or Magistrate can take all such evidence as may be produced in support of the prosecution. 13. The right of the accused be protected by instructing the Prosecution/complainant to provide the copies of the statements of the witnesses or documents, but not mentioned in the list of witnesses and documents filed with the Police report (Charge sheet)/complaint, to the accused, before examining the proposed witnesses. The probative value of the said additional evidence be decided later only, in the judgment. 14. The High Court of Andhra Pradesh in J.B. Roy vs. The State of Andhra Pradesh, AIR 1968 AP 236 . at para-No.7 held as under: "....The list of witnesses usually is given by the Police along with the charge-sheet because of the prevalent practice. The practice is undoubtedly desirable but no provision of the Code compels the prosecution to furnish any such list along with the charge-sheet. Nor furnishing of such a list of witnesses along with charge-sheet can mean that the prosecution has relinquished its right to call for any other witness whose name is not mentioned in the list. Nor binds the court to record only the statements of such persons whose names appear in the list. Nor furnishing of such a list of witnesses along with charge-sheet can mean that the prosecution has relinquished its right to call for any other witness whose name is not mentioned in the list. Nor binds the court to record only the statements of such persons whose names appear in the list. It does not disable the prosecution or the Court from examining any other witness if it is found desirable or necessary for the purposes of the case." 15. In the petition on hand, it appears that after examination of the accused under Sec. 251 CrPC, the learned Magistrate posted the case for trial and now the case is coming for complainant"s evidence as laid down under Sec. 254 CrPC and at that stage, the complainant filed the application to receive the two promissory notes said to have been executed by the accused in favour of the complainant; the learned Magistrate "Dismissed" the said application and thereupon the complainant preferred Criminal Revision Petition No.51 of 2019 before the learned Sessions Judge. The learned Sessions Judge in the impugned Order set-aside the Order of the learned Magistrate and allowed the revision permitting the complainant to produce the said promissory notes. 16. It is an admitted fact that the complainant in the complaint has mentioned that the accused were having business transaction with the complainant as well as his younger brother and further, the complainant and his younger brother are members of the joint family and in that capacity, the complainant"s brother advanced the loan of Rs.5, 00, 000.00 to the accused by executing two (02) promissory notes under dispute. Later, to discharge the amount due under the said promissory notes, he issued the impugned cheque, which was said to be dishonoured for insufficient funds in the account of the accused. 17. Considering the said facts and in view of the provision under Sec. 254 CrPC which was already explained by this Court in Pattivada Balaji vs. The State of Andhra Pradesh, Criminal Petition No.1499 of 2020, dtd. 23/9/2023 on the file of High Court of Andhra Pradesh at Amaravati. this Court is of the considered opinion that the Order of the learned Sessions Judge does not warrant any interference. 18. It is also submitted that copies of the said promissory notes were already provided to the accused before the Trial Court. 19. 23/9/2023 on the file of High Court of Andhra Pradesh at Amaravati. this Court is of the considered opinion that the Order of the learned Sessions Judge does not warrant any interference. 18. It is also submitted that copies of the said promissory notes were already provided to the accused before the Trial Court. 19. In the said circumstances, accused can avail the opportunity of cross-examination of the complainant and his witnesses with respect to these two (02) promissory notes as per law. 20. In the light of the above discussion, this Court do not find any grounds to interfere with the impugned Order of the learned Sessions Judge. Therefore, the petition is liable to be dismissed. 21. Accordingly, the Criminal Petition is Dismissed. 22. As a sequel, miscellaneous applications pending, if any, shall stand closed.