Madras High Court
N.Dhanraj Kochar vs The State on 7 January, 2021
Crl.R.C.No.10 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.10 of 2021
and Crl.M.P.Nos.41/21 & 8515 of 2020
N.Dhanraj Kochar ... Petitioner
Vs.
1.The State,
Rep.by Inspector of Police,
CCB, Chennai – 600 007.
2.Inderchand D.Kochar
S/o.Dhanraj
3.D.Suresh Kumar Kochar
S/o.Dhanraj Kochar
4.Ramesh Kumar Kochar
S/o.Dhanraj Kochar
5.Jithesh Kumar
S/o.I.C.Jain
6.Rajkumari
W/o.Ramesh Kumar Kochar
7.Anitha
W/o & .Suresh Kumar Kochar
8.Sarala
W/o.Indirchand Kochar ... Respondents
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1/10
Crl.R.C.No.10 of 2021
PRAYER: Criminal Revision Petition filed under Sections 397 r/w. 401 of
Cr.P.C. to
(i) call for records in Crl.M.P.No.7381 of 2019 in Crl.A.No.82 of 2017 on
the file of the Principal Session Judge of Kancheepuram at Chengalpattu;
(ii) set aside the order dated 08th December 2020 passed in
Crl.M.P.Nos.7381 of 2019 in Crl.A.No.82 of 2017 on the file of the Principal
Session Judge of Kancheepuram at Chengalpattu.
R/w.
(iii) direct the Principal Sessions Judge, Chengalpattu to take additional
evidence presented in Crl.M.P.Nos.7381 of 2019 in Crl.A.No.82 of 2017 on the
file of the Principal Session Judge of Kancheepuram at Chengalpattu.
For Petitioner : Mr.B.A.Sujay Prasanna
For Respondent : Mr.A.Madhan
Government Advocate (Crl.Side)
ORDER
The petitioner is the 1st appellant before the Sessions Court and arrayed as
A-1 in the criminal case before the trial Court and the respondent prosecution
registered the case against the petitioner herein for the offences punishable under
Sections 409 r/w.109, 120 (B) IPC. After trial, the trial Court convicted the
petitioner for the offences punishable under Sections 409 IPC r/w. 109 IPC and
120 (B) IPC and sentenced them to undergo Simple Imprisonment for 3 years
and to pay a fine of Rs.10,000/- each in default to undergo Simple Imprisonment
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Crl.R.C.No.10 of 2021
for 3 months.
2. Challenging the said judgment, the petitioner has filed appeal
before the Principal Sessions Court, Chengalpattu, Kanchipuram, in C.A.No.82
of 2017 and during the argument, the petitioners/accused filed the petition in
Crl.M.P.No.7381 of 2019 under Section 391 Cr.P.C. to adduce additional
evidence. After considering the same, the petition was dismissed. Challenging
the same, the petitioner has filed the present revision.
3. The learned counsel for the petitioner would submit that though the
petitioner has enough documents to disprove the case of the prosecution and
prove the case of the defence, did not file the same, as the prosecution has to
prove the case beyond reasonable doubt and therefore the petitioner has not filed
these documents. However, the trial Court failed to consider the fact that the
prosecution has miserably failed to establish the case and fastened the liability
on the petitioner. The learned District Judge expressed his view that the defence
failed to prove their case and therefore, convicted all the accused and at the time
of arguments in appeal, the learned District Judge expressed his view that the
defence would have disproved the prosecution case by producing necessary
documents.
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Crl.R.C.No.10 of 2021
4. The petitioner has ample documents to disprove the case of the
prosecution and prove the defence. But the Appellate Court dismissed on the
ground of delay and laches and during the investigation, some of the petitioners
approached for quashing the charge sheet and failed and went upto the Supreme
Court and they have also faced the trial and now in order to protract the appeal,
they have come forward with the present petition.
5. The Appellate Judge failed to look into the relevant documents and
the relevant documents are very much connected to this case. With the above
documents, the petitioner would very much establish the defence and it would be
helpful to the petitioner and if the documents come to the Court and permitted to
be lead in evidence, the judgment would be otherwise and therefore, an
opportunity to be given to the petitioner.
6. The learned counsel appearing for the petitioner would submit that
he also filed a petition under Section 243(2) Cr.P.C. Even though he filed a
petition under Section 243 (2) Cr.P.C. before the trial Court, but the trial Court
dismissed the petition without looking into the merits of the petition.
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Crl.R.C.No.10 of 2021
7. The learned Government Advocate (Crl.Side) would submit that
though the petitioner was given sufficient opportunity, he failed to utilize the
opportunity and he failed to lead the defence evidence and produce these
documents. These documents very much available even at the time of closing the
prosecution evidence and posted for defence witness and even in the appeal
stage, he has not raised any grounds of appeal and he has not filed any
application along with the appeal or on the date of filing the appeal till the
closing of the arguments and reserved for judgment. Subsequently for some
reason, the learned District Judge could not pronounce the judgment and the
successor reopened the arguments and at that time after the arguments only, he
filed the petition before pronouncing the judgment and therefore, the Sessions
Judge dismissed the petition on the ground of delay and that to protract the case
he filed the petition. There is no merit in the revision. Therefore, the revision
petition is liable to be dismissed. During the pendency of the appeal before the
learned Sessions Judge, the defacto complainant approached this Court in
Crl.O.P.No.20159 of 2019. This Court directed to dispose of the appeal within a
period of three months. After passing of the order by this Court, the petitioner
approached the Appellate Court by way of Crl.M.P.Nos.7381 of 2019 under
Section 391 Cr.P.C., to adduce additional evidence. Therefore, the learned
Sessions Judge dismissed the said petition, holding that the petitioner has not
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Crl.R.C.No.10 of 2021
made any prima facie case.
8. Heard and perused the records.
9. Admittedly, the case was registered against the petitioner for the
offences punishable under Sections 409 r/w. 109 & 120(B) IPC and trial Court
after trial, convicted the petitioner. Challenging the said conviction, all the
petitioners filed appeal before the learned Sessions Judge in Crl.A.No.82 of
2017 and the Sessions Judge also heard the arguments and reserved for
judgments and for some reason the Judge could not pronounce the Judgment.
The successor came to the office and re-heard the appeal. The learned Judge
raised some queries with the learned Government Advocate (Crl.side) for the
appellant thereafter the petitioner filed the application under Section 391 r/w.311
Cr.P.C., to receive additional evidence and documents. Therefore, as rightly
pointed out by the learned Counsel that the documents relied on by the
petitioner in the applications before the Appellate Court were very much
available even before conclusion of trial. However, when the first opportunity
was given to the petitioner he has failed to avail the opportunity either to mark
the documents with the prosecution witness or whenever they lead the defence
evidence. However, without expressing any opinion on the merits of the case and
also on the merits of the documents, this Court finds that since all the documents
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Crl.R.C.No.10 of 2021
are related to Criminal Appeal No.82 of 2017, in order to give an opportunity to
the petitioner, this Court is inclined to allow the revision and set aside the order
passed by the Sessions Court in Crl.M.P.Nos.7381 of 2019. However, all the
documents related to the prosecution were very much available even on the date
of commencement of trial. At the time of proceedings with the trial, either the
petitioner should have marked the documents before the prosecution witnesses
during cross examination or the documents should have been shown in the
written statement during the proceedings under Section 313 Cr.P.C. or by
examining the defence witnesses.
10. It is clear that the petitioner failed to avail the opportunity available to
him before the trial Court. However, as pointed out by the learned Government
Advocate, the petitioner approached more than once this Court, by way of other
applications and also fully participated in the trial and all the opportunity given
to the petitioner by the trial Court also, however, they failed to avail the
opportunity. Further it is pertinent to state that even at the time of filing appeal
also, he has not filed the petition and produced the documents and there is no
such ground taken in the appeal.
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Crl.R.C.No.10 of 2021
11. On a perusal of the documents submitted by the petitioner, it is seen
that those documents are relevant to the case. Therefore, the order passed by the
Lower Appellate Court in Crl.M.P.No.7381 of 2019 is set aside. However, the
delay is solely on the part of the petitioner. Therefore, this Court is inclined to
impose cost of Rs.1,00,000/- [Rupees One Lakh only] to the petitioner and the
petitioner is directed to deposit the amount to the Corona Relief Fund within a
period of 15 days i.e., on or before 21.01.2021, failing which the Revision shall
stand automatically dismissed without any reference to this Court.
12. However, it is made clear that the Lower Appellate Court/Principal
Sessions Judge of Kancheepuram at Chengalpattu, is directed to take such
evidence either by itself or issue appropriate directions for taking evidence by
the Magistrate.
13. The Criminal Revision is disposed of with the above directions.
Consequently, connected miscellaneous petitions are closed.
07.01.2021
mpa
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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Crl.R.C.No.10 of 2021
To
The Inspector of Police,
CCB,
Chennai – 600 007.
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.10 of 2021
P.VELMURUGAN, J.
mpa
Crl.R.C.No.10 of 2021
and
Crl.M.P.Nos.41/21 & 8515 of 2020
07.01.2021
https://www.mhc.tn.gov.in/judis/
