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Dr.GRR, J
crlrc_5_2020
THE HONOURABLE DR. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE NO.5 OF 2020
ORDER:
This Criminal Revision Case is filed by the petitioner - accused aggrieved by the orders passed by the XII Special Magistrate, Erramanzil, Hyderabad in Criminal M.P.No.3639 of 2019 in C.C.No.30 of 2019, dated 28.11.2019.
2. The case of the petitioner was that the respondent - complainant filed a complaint against him under Section 138 of Negotiable Instruments Act (for short "NI" Act) stating that he supplied material under various invoices and delivery challans and in discharge of the said liability, the petitioner - accused had issued a cheque, but the same was dishonoured.
3. During the course of trial in C.C.No.30 of 2019 on the file of the XII Special Magistrate, Erramanzil, Hyderabad, the respondent examined himself as PW.1 and marked Exs.P.1 to P.17. PW.1 was partly cross-examined on 08.11.2019. During the cross-examination, he was asked to produce the originals of Exs.P.11 to P.14 documents for which the respondent expressed his inability to produce the same as the said documents were filed in C.C.No.117 of 2018 on the file of the X Special Magistrate, Hyderabad and marked as Exs.P.3 to P.6 in the said case and the said 2 Dr.GRR, J crlrc_5_2020 case ended in conviction and the entire original records including Exs.P.11 to P.14 were transmitted to the appellate court and the same were pending in Criminal Appeal No.484 of 2019 on the file of the IV Additional Metropolitan Sessions Judge, Nampally, Hyderabad.
4. The petitioner - accused filed an application under Section 91 of Cr.P.C. to summon the originals of Exs.P.11 to P.14 (marked as Exs.P.3 to P.6 in C.C.No.117 of 2018 on the file of the X Special Magistrate Court) which were available in Criminal Appeal No.484 of 2019 pending on the file of the IV Additional Metropolitan Sessions Judge, Nampally, Hyderabad contending that Exs.P.11 to P.14 marked in the case were certified copies of Exs.P.3 to P.6 in C.C.No.117 of 2018, being certified photo copies, rubber stamps, signatures and dates thereon were not legible, as such, cross-examination of PW.1 could not be further continued and it became just and necessary for summoning the originals of Exs.P.11 to P.14.
5. The respondent - complainant filed counter in the said application stating that Exs.P.1 to P.18 were marked in the presence of the petitioner - accused and his counsel at the relevant point of time but no objection was raised for marking the said documents. Thereupon, the accused changed his counsel and when a new counsel came on record, he raised the plea of non-legibility. PW.1 was cross- 3
Dr.GRR, J crlrc_5_2020 examined at length and the commercial relationship between the complainant and the petitioner - accused for the period from 2014-15 to 2016-17 was admitted and the payment realised for the transactions entered in 2014-15 was also admitted. In the said circumstances, the application filed by the accused would amount to abuse of process of law.
6. On considering the contentions of both the counsel, the trial court observed that when the certified copies of Exs.P.11 to P.14 were marked and admitted into evidence, the filing of the application under Section 91 of Cr.P.C after a long gap of time was an exercise in futility. The material contents of the documents were clearly visible. The plea of seals in certified copies of documents being illegible would appear to be superfluous and dismissed the petition.
7. Aggrieved by the said dismissal, the petitoner - accused preferred this revision contending that no objection was taken by the learned counsel for the petitioner - accused while marking the certified copies of the originals as Exs.P.11 to P.14 under the bonafide belief that the same were legible and clear. But to the surprise and shock of the petitioner's counsel, while the same were confronted to the respondent (PW.1), the rubber stamps, signatures and dates thereon being not legible, the cross-examination could not be continued. As such, the Criminal M.P.No.3639 of 2019 was filed for summoning the Exs.P.11 to P.14.(marked as 4 Dr.GRR, J crlrc_5_2020 Exs.P.3 to P.6 in C.C.No.117 of 2018 on the file of the X Special Magistrate Court) which documents were available in Criminal Appeal No.484 of 2019 on the file of the IV Additional Metropolitan Sessions Judge, Nampally, Hyderabad.
8. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor.
9. The learned counsel for the petitioner contended that by allowing the petition, no prejudice would be caused to the respondent as the documents summoned were their own documents which the respondents failed to produce the same in original before the XII Special Magistrate Court, Erramanzil, Hyderabad. He further contended that it was the statutory right of the accused to prove his innocence. When the respondent himself categorically stated in the cross- examination that the dates mentioned in the stamp were not clear, the trial court ought to have allowed the petition on the said ground alone and relied upon the judgment of the Hon'ble High Court of Madhya Pradesh in Shivendra Dhakre v. Narendra Sharma1, wherein it was held that:
"once necessity and desirability of documents to be summoned established, the trial court ought to have called the documents to confront with the witnesses for doing complete justice. It is imperative that petition be allowed to confront the 1 (2017) 3 JLJ 325 5 Dr.GRR, J crlrc_5_2020 complainant by the documents to be summoned in defence of accused."
10. He also relied upon the judgment of the Hon'ble Apex Court in Kalyani Baskar v. M.S.Sampoornam2, wherein it was held that:
"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 the case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. Fair trial includes fair and proper opportunities allowed by law to prove her innocense. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. 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."
11. The learned Additional Public Prosecutor on the other hand supported the order of the trial court contending that the trial court could reject such request when the object of filing the application was for delaying the proceedings. He also contended that the order passed by the trial court refusing to call the documents was an interlocutory order. As such, the revision against those orders was barred 2 2006 (9) Supreme 823 6 Dr.GRR, J crlrc_5_2020 under Section 397(2) of Cr.P.C. and relied upon the judgment of the Hon'ble Apex Court in Sethuraman v. Rajamanickam3, wherein it was held that:
"Secondly, what was not realized was the order passed by the trial court refusing to call the documents and rejecting the application under Section 311 of Cr.P.C. were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397 (2) of Cr.P.C. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent - accused and the only deefence that was raised, was that his signed cheques were lost and that the appellant - complainant had falsely used one such cheque. The trial court also recorded a finding that the documents were not necessary. This order did not, in any manner decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 of Cr.P.C. for production of documents and other on the application under Section 311 of Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397 (2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed."
12. But the present application was filed under Section 482 of Cr.P.C, but not under Section 397 of Cr.P.C. There is a bar under Section 397(2) of Cr.P.C. as observed by the Hon'ble Apex Court in the above case. But this Court has power under Section 482 of Cr.P.C. to make such orders as necessary to prevent abuse of process of any court or to secure the ends of justice. 3 2009 (1) ALD (Criminal) 871 7 Dr.GRR, J crlrc_5_2020
13. The trial court rejected the petition on the ground that the counsel for the petitioner - accused had not raised any objection at the time of marking of documents and calling for the originals, when the material contents of the documents were clearly visible was an exercise in futility. But the contention of the petitioner was that while the certified copies of the documents were confronted to PW.1, further cross-examination could not be continued as the rubber stamps, signatures and dates thereon were not legible.
14. It is an established principle of law that free and fair trial is sinequinon of Article 21 of the Constitution of India and it is the main object of criminal law. A fair trial must be afforded to every accused and denial of fair trial amounts to injustice to the accused. The petitioner must have a chance to question the complainant with the documents for establishing his innocence. As observed by the Hon'ble Apex Court in Kalyani Baskar case (2 supra), 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. The trial court ought to have allowed the petition for summoning the original documents as no prejudice would be caused to the respondents, as the documents which were sought to be summoned were the original documents filed by the respondent himself before the said court.
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Dr.GRR, J crlrc_5_2020
15. In the result, the Criminal Revision Case is allowed setting aside the order of the XII Special Magistrate Court, Hyderabad in Criminal Appeal NO.3639 of 2019 in C.C.No.30 of 2019 dated 28.11.2019 and the Magistrate is directed to take steps to summon the documents as mentioned in the application preferred by the petitioner under Section 91 of Cr.P.C. and to afford an opportunity to the petitioner to confront the same to the complainant with the aid and support of the said documents. Since, the case is old, further proceedings shall be taken up with utmost expedition.
Miscellaneous petitions pending, if any, shall stand closed.
____________________ Dr.G. RADHA RANI, J 09th March, 2023 nsk.