Madras High Court
S.Ragurajan vs M.Duraiyan on 10 December, 2018
Crl.O.P.(MD)Nos.8050 and 8087 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.12.2021
PRONOUNCED ON:10.12.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)Nos.8050 and 8087 of 2019
and
Crl.M.P.(MD)Nos.4990 and 5008 of 2019
S.Ragurajan : Petitioner in both Crl.O.Ps
Vs.
M.Duraiyan : Respondent in both Crl.O.Ps
PRAYER in Crl.O.P.(MD)No.8050 of 2021: Criminal Original Petition has
been filed under Section 482 Cr.P.C, against the order passed by the learned
Judicial Magistrate No.II, Fast Track Court at Magisterial Level, Madurai in
Crl.M.P.No.5213 of 2018, in S.T.C.No.70 of 2013, by order dated 10.12.2018,
dismissing the petition filed by the petitioner under Section 311 Cr.P.C., to recall
the authorized officer of Divisional Personal Officer, Palakad and to produce the
statement for the period from 09.12.2011 to 12.08.2012 for the offence under
Section 138 of Negotiable Instruments Act.
PRAYER in Crl.O.P.(MD)No.8087 of 2021: Criminal Original Petition has
been filed under Section 482 Cr.P.C, against the order passed by the learned
Judicial Magistrate No.II, Fast Track Court at Magisterial Level, Madurai in
Crl.M.P.No.5214 of 2018, in S.T.C.No.70 of 2013, by order dated 10.12.2018,
https://www.mhc.tn.gov.in/judis
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Crl.O.P.(MD)Nos.8050 and 8087 of 2019
dismissing the petition filed by the petitioner under Section 311 Cr.P.C., to recall
of D.W.3 for the offence under Section 138 of Negotiable Instruments Act.
For Petitioner
in both petitions : Mr.S.Ramasamy
For Respondent
in both petitions :Mr.S.Suresh Isaac Paul
COMMON ORDER
Crl.O.P.(MD)No.8050 of 2019 is directed against the order passed in Crl.M.P.No.5213 of 2018 in S.T.C.No.70 of 2013, dated 10.12.2018, on the file of the Court of the Judicial Magistrate No.II (Fast Tract Court at Magisterial Level), Madurai, dismissing the petition filed under Section 311 Cr.P.C.
2. Crl.O.P.(MD)No.8087 of 2019 is directed against the order passed in Crl.M.P.No.5214 of 2018 in S.T.C.No.70 of 2013, dated 10.12.2018, on the Court of the Judicial Magistrate No.II (Fast Tract Court at Magisterial Level), Madurai, dismissing the petition filed under Section 311 Cr.P.C.
3. Since both the petitions have been filed in S.T.C.No.7 of 2013 and are connected with each other, both petitions are taken up jointly and a common order is being passed.
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4. The petitioner has filed a complaint under Section 200 Cr.P.C., against the respondent for the offences alleged to have been committed under Section 138 r/w 142 of the Negotiable Instruments Act and the same is pending in S.T.C.No.70 of 2013, on the file of the Judicial Magistrate No.II (Fast Tract Court at Magisterial Level), Madurai. It is not in dispute that after completion of the evidence on both sides and when the case is pending for arguments, the application in Crl.M.P.No.5213 of 2018 came to be filed under Section 311 Cr.P.C., seeking orders to summon the Authorized Officer of Divisional Personnel Office, Palakad and for production of the absentees statement for the period commencing from 09.12.2011 to 12.08.2012 in respect of the respondent/accused and the other application in Crl.M.P.No.5214 of 2018 also came to be filed under Section 311 Cr.P.C., seeking orders to recall the Station Master, Walayar (D.W.3) and also for production of the register for taking over charge and handing over the charge to the pointsman duty by the respondent/accused for the period commencing from 09.12.2011 to 12.08.2012. In both the applications, the respondent/accused has filed his counter statement and the learned Judicial Magistrate, after enquiry in both petitions, has passed separate orders on 10.12.2018 dismissing both the applications. Aggrieved by the said order of dismissal, the complainant has come forward with the present Criminal Original Petitions.
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5. It is not in dispute that the respondent/accused has examined himself as D.W.1 and examined the Welfare Inspector of Southern Railway, Palakad, Mr.Vinothrajan as D.W.2 and the Station Superintendent of Walayar Railway Station, Mr.Thangappan Nair as D.W.3 and exhibited five documents as Exs.D.1 to D.5. It is further evident from the records that the respondent/accused has taken a defence of alibi, alleging that he was on duty on 10.12.2011, the date on which the respondent has allegedly borrowed a sum of Rs.3,00,000/- from the complainant at his house at Madurai and executed a promissory note in his favour and on 11.08.2012, the date on which the disputed cheque was alleged to have been given to the complainant. It is also evident from the records that the respondent has produced the certified copy of the muster rolls and thereafter the original muster register was summoned and exhibited through D.W.2- Welfare Inspector of Southern Railway.
6. It is the specific case of the petitioner/complainant that at the time of preparing for arguments, the petitioner's Advocate has advised the petitioner that the absentees statement for the period from 09.12.2011 to 12.08.2012 in respect of the respondent/accused maintained by the Divisional Personnel Officer, Palakad is to be sent for and any Authorized Officer attached to the Divisional Personnel Office of Palakad is to be summoned to produce the said document https://www.mhc.tn.gov.in/judis 4/8 Crl.O.P.(MD)Nos.8050 and 8087 of 2019 and depose in respect of that document, in order to ascertain the truthness of the entries made in Ex.D.5.
7. It is the further case of the petitioner that he was also advised by his Advocate that the register for taking over charge and handing over charge of pointsman duty by the respondent /accused on 10.12.2011 and 11.08.2012 being maintained by the Station Master, Walayar is to be sent for and the Station Master of Walayar is to be summoned to produce the said document and depose in respect of the said document in order to ascertain the truthness of the entries made in Ex.D.5.
8. The learned Counsel for the petitioner would submit that wrong entries were made in the muster rolls, as if the respondent/accused was on duty, in order to help the respondent and the muster rolls were manipulated and that suggestions were also put to D.W.2 and D.W.3 in this regard.
9. As rightly contended by the learned Counsel for the respondent, the petitioner is not clear as to whether muster rolls in respect of both days ie, 10.12.2011 and 11.08.2012 were manipulated or that the muster rolls were manipulated with respect to one day.
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10. In Crl.M.P.No.5213 of 2018, the learned trial Judge has observed that the Officials of Southern Railway Department have been examined and they have also produced muster rolls of the Personnels in Southern Railway, Palakad and that therefore, any further clarification is not at all necessary. In Crl.M.P.No. 5214 of 2018, the learned trial Judge has observed that already witnesses have been examined in detail on both sides and documents have also been produced and that the application for seeking further documents regarding the handing over charge is not necessary.
11. As already pointed out, the respondent/accused, in an attempt to prove his defence of alibi, has examined the Welfare Inspector of Southern Railway and the Station Superintendent of Walayar Railway Station and exhibited five documents including the original muster rolls. Moreover, as rightly pointed out by the respondent's side, the petitioner has not whispered in both Crl.M.Ps., or in the present petitions, as to why or in what way, the muster rolls were manipulated. It is not the case of the petitioner that during the cross examination of the Railway Officials that they have elicited answers/aspects, sufficient enough to infer that there were manipulations in the muster rolls. It is also not the case of the petitioner that he had already lodged complaints with respect to the manipulation of muster rolls to the concerned Officials of the Railway Department.
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12. It is pertinent to mention that the above case was instituted under Section 138 of the Negotiable Instruments Act in the year 2013 and the same is pending for the past 8 years. Considering the entire facts and circumstances, as rightly pointed out by the learned Counsel for the respondent, the above petitions came to be filed only to delay the disposal of the case and hence, this Court is of the view that the order passed by the learned trial Judge in Cr.M.P.Nos.5213 and 5214 of 2018, dated 10.12.2018 cannot be found fault with. Consequently, this Court concludes that the above Criminal Original Petitions are devoid of merits and the same are liable to be dismissed.
14. In the result, both the Criminal Original Petitions are dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed.
10.12.2021 Index : Yes/No Internet : Yes/No SSL Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To The Judicial Magistrate Court No.II, Fast Track Court at Magisterial Level, Madurai https://www.mhc.tn.gov.in/judis 7/8 Crl.O.P.(MD)Nos.8050 and 8087 of 2019 K.MURALI SHANKAR, J.
SSL ORDER MADE IN Crl.O.P.(MD)Nos.8050 and 8087 of 2019 10.12.2021 https://www.mhc.tn.gov.in/judis 8/8