Madras High Court
Selvam vs Muthu on 13 June, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 13/06/2007 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Revision Case (MD) No.775 of 2006 Selvam ... Petitioner Vs Muthu ... Respondent PRAYER Criminal Revision Petition is filed under Section 397 & 401 of Criminal Procedure Code against the order dated 11.09.2006 in Crl.M.P.No.2936 of 2006 in C.C.No.104 of 2005 on the file of the learned Judicial Magistrate No.IV, Tiruchirapalli. !For Petitioner : Mr.A. Abdul Khadher ^For Respondent : Mr.P. Rajendran, GA(Crl. Side) :ORDER
This Revision is directed against the order dated 11.09.2006 in Crl.M.P.No.2936 of 2006 in C.C.No.104 of 2005 on the file of the learned Judicial Magistrate No.IV, Tiruchirapalli.
2. Heard the learned counsel for the petitioner. Despite printing the name of the respondent, no one represents.
3. A re'sume' of facts absolutely necessary for the disposal of the Criminal Revision would run thus:
4. The respondent/complainant filed a complaint before the learned Judicial Magistrate No.IV, Tiruchirappalli for the offence under Section 138 r/w 142 of the Negotiable Instruments Act. It was taken on file. While so, strangely as per the version of the learned Judicial Magistrate, himself, as found in the order, the documents filed along with the complaint was returned to the complainant himself on 01.01.2005, but he did not return the documents.
5. The petitioner filed subsequently Crl.M.P. No.2936 of 2006 in the Judicial Magistrate Court for enabling him to proceed with the case with the photo copies of the documents including the cheque which happened to be the main document in the case. The learned Judicial Magistrate after hearing both sides, permitted the petitioner to proceed with the case based on such photo copies.
6. Being aggrieved by the order, the respondent/ complainant filed this Revision on the following main grounds among others.
The petition filed by the complainant itself was not maintainable as under
the Criminal Procedure Code or Criminal Rules of Practice, there is no such procedure for filing such a petition. Even before the conclusion of the trial, the learned Judicial Magistrate gave findings in his order. Accordingly he prayed for setting aside the order of the learned Judicial Magistrate.
7. Suprisingly and shockingly, the learned Judicial Magistrate did choose to return the vital documents based on which the complaint was filed, and no where under the law such a procedure is contemplated. Neither in the Criminal Procedure Code nor in the Criminal Rules of Practice, Such a procedure is contemplated for returning the vital documents based on which complaint was alleged.
8. If at all any copy has to be relied on, then it could be tendered as evidence at the time of trial and at the time the accused would be having the right to object to it. Recording such objection, and subject to passing final order, the matter has to be processed further. There should also be evidence concerning the alleged fact of having the original got lost. The legal implications relating to such missing and absence of the documents should be considered while disposing of the matter finally. It if could be found that the non production of the original resulted in failure of justice, then the case would end in a fiasco. The learned Judicial Magistrate was wrong in his conclusion that only charge is framed, the onus of proof is on the accused to prove his innocence, and such a stand is totally antithetical to the law of evidence and the law relating to criminal trial and more specifically the law relating to trial of cases under Section 138 of N.I. Act.
9. The various findings given by the learned Judicial Magistrate are all liable to be set aside and he was not expected to jump to such a conclusions even before conducting the trial relating to the validity, admissibility etc. of these documents.
10. Hence, in these circumstances, the findings given by the learned Judicial Magistrate are set aside and he shall have to deal with the case as discussed supra.
11. The learned Judicial Magistrate shall to well to see that he discontinues immediately the practice of returning back the vital documents relating to criminal cases pending trial.
12. With the above observation, the Criminal Revision Petition is disposed of.
To
1. The Judicial Magistrate No.IV, Trichirappalli.