TMI Blog2022 (6) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... cases MRS. KALYANI BASKAR VERSUS MRS. M.S. SAMPORNAM [ 2006 (12) TMI 545 - SUPREME COURT] and T. NAGAPPA VERSUS Y.R. MURALIDHAR [ 2008 (4) TMI 789 - SUPREME COURT] . The petitioner is an accused under Section 138 N.I Act punishment of which may extend to imprisonment for a term up to two years or with fine which may extend to twice the amount of cheque or with both. Therefore, he should be allowed fair and proper opportunity to prove his innocence. Adducing evidence in support of his defence is a valuable right of him which cannot be denied to him. If for non submission of the true particulars of the witnesses, the trial Court felt it difficult to issue summons to the defence witnesses, trial Court could have asked the accused to submit proper particulars of the witnesses. One of the reasons assigned by the trial Court is that in a complaint case it is the duty of the accused to produce the defence witnesses on his own and court cannot issue summons to the defence witnesses. It is true that accused should not be allowed to unnecessarily protract the trial or request the Court to issue summons to the witnesses whose evidence would not at all be relevant for deciding the case. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque to SBI at the Belonia branch for encashment on 15.09.2015. But the cheque was returned unpaid for the reason that amount available in the account of the accused was not sufficient for encashment of the cheque. Complainant s husband sent statutory notice to the accused through his lawyer demanding payment of the amount of the cheque which was dishonoured by the bank. Despite receiving notice accused neither replied nor paid the money. [5] Husband of the complainant died at Chennai during his treatment at St. Isabel Hospital in Chennai on 10.04.2016. After the death of her husband complainant returned to Agartala on 07.06.2016 and obtained survival certificate from the competent authority. While she was searching for the papers relating to bank deposits of her deceased husband, she noticed the bounced cheque and the connected papers. She immediately contacted her lawyer and handed over the papers to him. As a result, some delay occurred in filing the complaint at the Court. [6] The order passed by the trial Court would demonstrate that initially the trial Court declined to admit the complaint petition for hearing mainly on the ground that complaint was not filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g condonation of delay by registering case No. Misc.(N.I) 52 of 2017. The trial Court after hearing the parties represented by their counsel passed an elaborate order on 02.04.2018 condoning the delay of 232 days in filing the complaint which reads as under: 02.04.2018 ****** Starting from the day on which late husband of the complainant first visited Chennai till the day of his death, it is prudently accepted that owing to such a condition he was in no position to file the complaint before the Court and after his death till filing of the instant complaint, I find the period to have been reasonably explained as the present complainant lost her husband and was not in a position to appear before the Court immediately there-after. Apart from the above, it is also accepted that the complainant required some reasonable time to know about the alleged transaction of her late husband and collect the relevant documents. In view of the above, i find it right to decide the present issue in favour of the complainant and consequently allow her petition. In the result, the delay of 232 days in filing the complaint is hereby condoned. The original case shall p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge uphold the order of the trial Court and dismissed the criminal revision. The order passed by the learned Sessions Judge in the criminal revision reads as under: 27.07.2021. ******I have also perused the judgment relied upon by learned counsel for the revision petitioner and in this judgment, the Hon ble High Court of Madras has discussed about Section 243(2) of Cr. P.C and this relates to the trial of warrant cases by the Magistrate. So this judgment cannot be taken into consideration because the case before this court is a summons case based on the complaint of the complainant. This court is of the opinion that learned trial court has rightly rejected the petition on the ground that the instant case is a complaint case wherein parties are under the obligation to adduce evidences on their own accord. There cannot be two standards for complainant and accused. As per the summons trial based on the complaint, complainant is asked to adduce or produce his witnesses and similar procedure will be applicable for the defence also. So the defence has to call his witnesses and if the witnesses are not coming before the court despite of his efforts, then he may make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case under Section 138 N.I. Act applied to the trial Court for sending the cheque in question for opinion of hand-writing expert after the complainant closed her evidence. The trial court refused the prayer of the accused which was upheld by the High Court. The Hon ble Apex Court set aside the order of the High Court and held as under: 12. Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure, 1973. The Apex Court reiterated the principles enunciated in the case of Kalyani Baskar (supra) and held as under: 9. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant. [18] Learned senior counsel representing the petitioner has further contended that the Apex Court in a catena of decisions has held that right of accused to adduce evidence in support of defence is a part of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for. 10. In Mohanlal Shamji Soni v. Union of India Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime. It was this reality which impelled the Parliament to chalk out measures to curb procrastinating procedural clues. Section 22 of the P.C. Act is one of the measures evolved to curtail the delay in corruption cases. So the construction of Section 243(1) of the Code as telescoped by Section 22 of the PC Act must be consistent with the aforesaid legislative intent. 17. The purpose of furnishing a list of witnesses and documents to the Court before the accused is called upon to enter on his defence is to afford an occasion to the court to peruse the list. On such perusal, if the court feels that examination of at least some of the persons mentioned in the list is quite unnecessary to prove the defence plea and the time which would be needed for completing the examination of such witnesses would only result in procrastination, it is the duty of the court to short list such witnesses. We may also add that if the court feels that the list is intended only to delay the proceedings, the court is well within its powers to disallow even the whole of it. [21] From a plain reading of Sub Section (2) of Section 243 Cr.P.C it would emerge that after the accused in a case has enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to six witnesses. On these grounds, the learned Sessions Judge upheld the orders dated 15.03.2019 and 14.06.2019 passed by the Chief Judicial Magistrate. [24] It is no case of either of the parties that Section 243 Cr. P.C has no application in this case. The Apex Court has also approved the applicability of Section 243 Cr. P.C in a case under Section 138 N.I. Act in the judgment rendered in Kalyani Baskar (supra) as well as in the case of T. Nagappa (supra). Therefore, no question can arise with regard to applicability of Section 243 Cr. P.C in the cases under N. I. Act. [25] The reasons assigned by the trial Court as well as by the learned Sessions Judge for refusing the prayer of the accused for issuing summons to his witnesses are not acceptable in view of the law laid down by the Apex Court in the cases Kalyani Baskar (supra) and T. Nagappa (supra). The petitioner is an accused under Section 138 N.I Act punishment of which may extend to imprisonment for a term up to two years or with fine which may extend to twice the amount of cheque or with both. Therefore, he should be allowed fair and proper opportunity to prove his innocence. Adducing evidence in support of his def ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
