Madras High Court
R.R.Gopalji vs M/S.Rajah Holdings on 2 August, 2024
Crl.R.C.(MD).No.401 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 23.04.2024
Pronounced On : 02.08.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.R.C.(MD).No.401 of 2024
and
Crl.M.P(MD). No.4369 of 2024
R.R.Gopalji ...Petitioner / Accused
Vs.
M/S.Rajah Holdings,
Regd.Partnership Firm,
No.69,Town High School Road,
Kumbakonam,
rep.By its Partner,
Mr.R.V.Subramaniyam ...Respondent / Defacto Complainant
PRAYER : Criminal Revision Petition is filed under Section 397 r/w 401 of
Cr.P.C, to call for the records in Cr.M.P.No3131 of 2023 in S.T.C.No.1743 of
2019 on the file of the learned Judicial Magistrate No.1, Kumbakonam, Thanjavur
District, dated 27.10.2023 and set aside the judgments of the Courts below and
acquit the petitioner.
1/13
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.401 of 2024
For Petitioner :Mr.A.V.Rajasekaran
For Respondent :Mr.H.Lakshmi Shankar
ORDER
The Petitioner is the accused in S.T.C.No.1743 of 2019 on the file of the
learned Judicial Magistrate No.1, Kumbakonam, Thanjavur District, and he has
filed this revision challenging the dismissal order passed in Cr.M.P.No.3131 of
2023, dated 27.10.2023 filed under section 254(2) of Cr.P.C., to examine the
witnesses as a defence witnesses. The same was dismissed by learned trial judge
stating that the petitioner filed this petition without bona fide reason to prolong
the proceedings.
2.The case of the defacto complainant is that the Petitioner borrowed a sum
of Rs.2,30,00,000/- (Rupees Two Crores and Thirty Lakhs Only) from the defacto
complainant. The liability along with interest, according to the defacto
complainant, is calculated as Rs.5,85,00,000/-. On his demand, the petitioner is
said to have issued the cheque bearing No.000087 dated 04.04.2018 drawn on
City Union Bank Limited, Cantonment Branch, Trichy. The respondent presented
https://www.mhc.tn.gov.in/judis
the same on 09.04.2018 and the same was dishonored. The respondent had issued
legal notice on 16.04.2018. The petitioner neither paid any amount nor sent any
reply. Hence, the respondent filed a complaint under Section 138 of Negotiable
Instruments Act and the same was taken on file in S.T.C.No.1743 of 2019 before
the learned Judicial Magistrate No.1, Kumbakonam, Thanjavur District. Finally,
the case was posted for the evidence of the defence. At this stage, he filed a
petition in Cr.M.P.No.3131 of 2023, to examine the three bank managers to
produce the bank accounts in the savings and current account numbers in Account
No.1219128000000294, Savings Account No. 1219155000020474, Saving
Account No.153001000352721. The petitioner specifically pleaded that he
already paid a sum of Rs.9,14,78,480/- through account transfer. In view of the
filing of the case, after a number of years, the bank account was closed and hence,
he was unable to produce the account statement. Therefore, he wants to examine
the bank manager to prove the fact that the amount was transferred to the Current
Account No.1219128000000294, Savings Account No. 1219155000020474,
Saving Account No.153001000352721, of the complainant. The same was
dismissed on the ground that the petitioner has filed the same to drag on the
proceedings.
https://www.mhc.tn.gov.in/judis
3.The learned counsel appearing for the petitioner submitted that even
though earlier number of directions were issued by this Court, considering the fair
opportunities and also the right to adduce the evidence to prove his defence is the
fundamental right under Article 21 of the Constitution of India the provision may
be allowed. He further submitted that it is the duty of the petitioner to prove the
evidence and to rebut the presumption under Section 139 of Cr.P.C. For that
purpose, he filed this petition and the same was dismissed by the learned trial
Judge. Hence, he seeks for setting aside the impugned order and allow this
application.
4.Per contra, the learned counsel appearing for the respondent/complainant
submitted that the case was taken on file in S.T.C.No.1743 of 2019. There were
number of directions issued by this Court to dispose of this case on various
occasions. Hence, in order to protract this case, he filed the petition without
merits. Apart from that, it is duty of the petitioner to prove his defence through
filing the account statement obtained from the concerned Bank Manager. It is not
necessary to examine the Bank Manager. In the said circumstances, he seeks for
https://www.mhc.tn.gov.in/judis
the dismissal of this petition and confirm the impugned order passed by the
learned trial Judge.
5.This Court considered the rival submission made on either side and
perused the record including the impugned order and annexed documents filed by
both the parties.
6.From the argument of both the parties, it is clear that the petitioner is said
to have borrowed a sum of Rs.2,30,00,000/- (Rupees Two Crores Thirty Lakhs
Only). According to the petitioner, the amount was borrowed for interest. He
made periodical interest along with principal amount. He finally discharged his
debt amount by making the payment of Rs.9,14,78,480/-. To establish the same,
he wants to examine the concerned Bank Manager to produce the account
statement of the petitioner to prove that he made the above said payment. The said
request of the petitioner is a bona fide one. According to the petitioner, he pleaded
a specific case that he borrowed the said amount and the same was discharged
through account transfer. To prove his defence, it is necessary to examine the
Bank Manager under Section 254(2) of Cr.P.C.,. The Section 254(2) of Cr.P.C., is
https://www.mhc.tn.gov.in/judis
as follows:-
(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.
7.From the reading of Section 254(2) of Cr.P.C., it is clear that it is the
prerogative of the accused to produce the evidence to prove his defence.
7.1.The Hon'ble Supreme Court, in the case of Ronald Vs. State of West
Bengal reported in AIR 1954 SC 455, has held as follows:
“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
https://www.mhc.tn.gov.in/judis
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”.
7.2.This Court in the case of N.Hentry Vs. P.Natarajan, reported in 2014
(2) MWN (Crl) DCC 61, has held as follows:
13. 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 unfetted
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
https://www.mhc.tn.gov.in/judis
to adduce defence evidence.
7.3.This Court in the case of M.Saravanan Vs. S.Murugesan in
Crl.R.C.No.970 of 2017, has held as follows:
21. As has been rightly pointed out by the learned
Judge, the power of the Magistrate under Section
254(2) of the Code is of wider amplitude than that of
the Sessions Judge, and while exercising the said power
either accepting or rejecting the petition for summoning
any witnesses, the Magistrate concerned must give
reasons as to why, he accepts the petition or rejects the
same, as the case may be. If these parameters are
applied in the impugned order, it can be easily stated
that the learned Magistrate has not given any reasons
for rejecting the said plea of the petitioner. Even the
one line reason given in the short order is not a correct
reason. The finding given by the learned Judge at the
time of the rejection of petition is that, there is no
change in circumstance, and therefore the said reason
given in the present impugned order is not acceptable.
Therefore, this Court is of the view that the impugned
order is unsustainable. Hence it is liable to be set aside
and accordingly it is set aside.
https://www.mhc.tn.gov.in/judis
8.It is the duty of the trial Court to afford adequate opportunity to the
accused to prove his case by allowing him to examine witnesses on his side. The
trial Court is duty bound to give equal opportunity to both complainant and
accused. There shall not be any inequality between examining witness on the side
of the complainant and the accused. Both are having equal rights to produce the
evidence to prove their case.
9.In this case, apart from the above application of law, the presumption
under Section 139 NI Act, has to be dispelled by the accused. Therefore, to dispel
the said presumption, it is duty of the accused to produce the evidence to establish
his defence by preponderance of probability. For that purpose, he filed the said
petition before the trial Court. The trial Court, without adherence to the above
principle, erroneously dismissed the application only on the ground that the
petitioner filed this petition to prolong the hearing. The same was not correct
considering the progress of the case. In this case, the examination of the
complainant witness was closed and the case is posted for the examination of the
defence witness. The respondent filed the counter as follows:
https://www.mhc.tn.gov.in/judis
The complainant objects to the petition filed by
the accused. It may be dismissed.
10.From the above, the dismissal of the petition on the ground that the
petitioner's request was not bona fide and it was filed only to prolong the
litigation is not correct on factual aspects also.
11.The learned counsel appearing for the respondent submitted that the
language couched in Section 243 of Cr.P.C., is not same as found in 254 Cr.P.C..
Section 243 of Cr.P.C. provides “wide power” and under Section 254 of Cr.P.C,.
the same was restricted one. Therefore, he seeks to dismiss the petition. This
Court is unable to accept the said argument for the reason that both Sections
mandate to give adequate opportunity to the accused to prove his defence. In the
said circumstances, applying the above principle and also considering the factual
matric of this Case that the case was posted for the examination of the defence
witness, this Court is inclined to set aside the impugned order and allow the
petition filed by the petitioner in Cr.M.P.No.3131 of 2023, in the interest of
justice and in compliance of fair justice and achieve the object of the fair trial
enshrined under article 21 of the Constitution of India.
https://www.mhc.tn.gov.in/judis
12.Accordingly, this Revision Petition is allowed in the following terms:-
12.1.The impugned order passed in Cr.M.P.No.
3131 of 2023 in S.T.C.No.1743 of 2019, dated
27.10.2023, by the learned Judicial Magistrate No.1,
Kumbakonam, Thanjavur District is set aside.
12.2.The learned trial judge is directed to issue
the summons to the witnesses and also examine them
on the side of the defence witnesses and complete the
same.
12.3.The learned trial judge is hereby directed to
dispose the case within a period of six months from the
date of receipt of the copy of this order.
Consequently, the connected criminal miscellaneous petition is closed.
02.08.2024
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
vsg
https://www.mhc.tn.gov.in/judis
To
1.The learned Judicial Magistrate No.1,
Kumbakonam, Thanjavur District.
2.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
K.K.RAMAKRISHNAN.J.,
vsg
and
02.08.2024
https://www.mhc.tn.gov.in/judis
