Andhra Pradesh High Court - Amravati
Lavu Veeraiah vs The State Of Ap on 5 November, 2024
APHC010573462023
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 1041/2023
Between:
Lavu Veeraiah ...PETITIONER
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. GANESH PALADUGU
Counsel for the Respondent(S):
1. NAGENDRA BABU.U
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
Dr. VRKS, J
Crl.R.C.No.1041 of 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.1041 of 2023
ORDER:
This Criminal Revision Case filed under Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.) impugns the order dated 26.10.2023 of the learned I Additional Junior Civil Judge, Guntur in Crl.M.P.No.134 of 2023 in C.C.No.5 of 2015. Respondent No.1 is State. Respondent No.2 is the de facto complainant.
2. Heard arguments of Sri Paladugu Ganesh, the learned counsel for petitioner and Sri U.Nagendra Babu, the learned counsel for respondent No.2 and the learned Assistant Public Prosecutor for respondent No.1-State.
3. On a complaint lodged by respondent No.2, the learned V Additional Munsif Magistrate, Guntur registered C.C.No.5 of 2015 for the offence under Section 138 of the Negotiable Instruments Act wherein a partnership firm is arraigned as A.1 and its partners are arraigned as A.2 and A.3. The allegations therein are to the effect that the accused were due to pay Rs.45,80,398/- to the 3 Dr. VRKS, J Crl.R.C.No.1041 of 2023 complainant and towards part payment of it they had issued a cheque for Rs.42,00,000/-. On presentation for collection the banker returned it unpaid endorsing that the account was closed. Accused made their appearances and they are defended by their learned counsel. Evidence on behalf of the complainant was completed. On 14.09.2017 the incriminating material on record was offered to the accused under Section 313 Cr.P.C. seeking their explanation. Thereafter the accused moved an application under Section 315 Cr.P.C. seeking permission of the trial Court for production of evidence in defence. Learned trial Court allowed the same. Thus, before the trial Court the matter was coming up for production of defence side evidence. In the above referred context of facts, accused No.2- Sri Lavu Veeraiah who is aged 69 years, who is said to be suffering from pain in the spine filed an application under Section 284 Cr.P.C. stating that an advocate commissioner may be deputed to his house to record his evidence. That petition was registered as Crl.M.P.No.134 of 2023 in C.C.No.5 of 2015. Counter was not filed by the complainant but it was endorsed that if law permits the petition may be allowed. It was in such context, the learned trial Court had to embark upon a serious hearing of the matter and by an 4 Dr. VRKS, J Crl.R.C.No.1041 of 2023 order dated 26.10.2023 it dismissed the petition stating that the lumbar problem ventilated by the second accused is not supported by medical evidence and in terms of Section 285(1) Cr.P.C. an advocate commissioner could not be appointed to record the evidence in any criminal trial and therefore it dismissed the petition. That forced the petitioner to move this revision.
4. Learned counsel contends that before the trial Court they filed the necessary documents concerning medical advice but the learned trial Court erroneously held otherwise. The attention of the Court is drawn to the above said medical certificate which shows that it was issued by the doctor at Sri Venkateswara Ayurvedic Hospital on 08.09.2023 stating that the petitioner/A.2 has been suffering from Lumbar Spondylosis and was advised to take bed rest from 08.09.2023 for a period of 15 days. Thus, by 23.09.2023 the advice for bed rest was over. The impugned order was passed on 26.10.2023. Thus, by then the advised bed rest period was already over. It is not the case of the petitioner that there was further medical advice for bed rest. It is also not the case of the petitioner that he has not been attending his business activities in the partnership firm. Therefore, the 5 Dr. VRKS, J Crl.R.C.No.1041 of 2023 observations of the trial Court that the medical reason cited has not been established cannot be said to be erroneous.
5. Before this Court, the learned counsel for petitioner submits that in terms of Sections 284, 285 and 286 Cr.P.C. advocate commissioner could be deputed to record the evidence of the accused. Section 284 Cr.P.C. provides that attendance of a witness can be dispensed with and a commission could be issued to record his evidence. To whom commission could be issued is provided in Section 285 Cr.P.C., which reads as below:
"285. Commission to whom to be issued:--
(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.
(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission shall be directed to such Court or officer as the Central Government may, by notification, specify in this behalf.
(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the 6 Dr. VRKS, J Crl.R.C.No.1041 of 2023 commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification, prescribed in this behalf."
6. Section 286 Cr.P.C. provides for execution of commissions by the Magistrate who was appointed in terms of Section 285 Cr.P.C. On a conjoint reading of the above provisions, one would clearly notice that the commission could be issued only to Chief Metropolitan Magistrate or the Chief Judicial Magistrate to record the evidence. During hearing of arguments, the learned counsel for petitioner was asked to find out where one could find that an advocate could be appointed under these provisions to record the evidence in a criminal trial. The learned counsel failed to point out anything from the statute. Thus, the learned trial Court is right in holding that the prayer made in the petition is against the statute and therefore could not be considered. The said opinion of the learned trial Court is right on facts and law. Since no illegality or irregularity or impropriety is involved in the impugned order, this revision shall be dismissed.
7. As one would notice that Section 313 Cr.P.C. examination was over way back in the year 2017 and on one ground or the 7 Dr. VRKS, J Crl.R.C.No.1041 of 2023 other the accused seem to be retarding the trial process. For making an application without any merit before the trial Court and carrying it further before this Court, the accused has demonstrated his proclivity to prevent the smooth flow of trial process. Therefore, petitioner shall be mulcted with costs.
8. In the result, this Criminal Revision Case is disposed of. The petitioner is directed to pay Rs.1,000/- (Rupees One Thousand only) as costs to respondent No.2/complainant and thereafter tender defence evidence if so desired. Learned trial Court is directed to proceed with the trial of C.C.No.5 of 2015 as expeditiously as possible. Time for deposit of costs is ten (10) days from the date of receipt of a copy of this order by the trial Court.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 05.11.2024 Ivd 8 Dr. VRKS, J Crl.R.C.No.1041 of 2023 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.1041 of 2023 Date: 05.11.2024 Ivd