IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE ARUNA JAGADEESAN
Crl.OP.No.13441 to 13469/2006
Crl.OP.No.13441/2006:
Mukesh N.Doshi Petitioner
Vs
1.M/s.Victory Timbers and Ply Woods
Chennai-112
2.A.P.Mammootty
3.Mrs.A.P.Mammootty
4.Faizal, Partner
M/s.Victory Timbers and Ply Woods
Chennai-112 Respondents
Prayer:- Cr.OP.No.13441/2006 is filed to set aside the order granting permission to examine the list of defence witness filed by the Respondent/accused dated 7.4.2006 in CC.No.194/2001 by the learned Judicial Magistrate, Tambaram.
The other Criminal Original Petitions are filed for the reliefs as stated therein.
For Petitioner : Mr.A.Natarajan, SC for
Ms.A.Madhumathi
For Respondents : Mr.C.T.Udayappan
COMMON ORDER
Since the Petitioner, the Respondents and the issue involved in all these Criminal Original Petitions are one and the same, they are disposed of by this common order.
2. The Petitioner/complainant seeks to set aside the order of the learned Judicial Magistrate, Tambaram, granting permission to examine two witnesses mentioned in the list of defence witnesses filed by the Respondents/accused dated 7.4.2006 in the private complaints.
3. The Petitioner/complainant filed as many as 29 private complaints against the Respondents for the offence under Section 138 of the Negotiable Instruments Act for dishonour of the cheques issued by them in discharge of the loan liability. According to the Petitioner, the Respondents used to borrow money from the complainant for the business purpose and the said money transaction was going on for some time. Out of the total amount borrowed, the Respondents had settled a sum of Rs.1.34 Crores and a balance of Rs.2.16 Crores was remaining to be paid, for which they had issued 29 cheques in favour of the Petitioner and when those cheques were presented for collection, the same were dishonoured.
4. On the side of the Petitioner, the complainant Mukesh N.Doshi had been examined as PW.1 and one Basker was examined as PW.2. Thereafter, the Respondents has filed a petition under Section 91 of Code of Criminal Procedure to summon the documents relating to income tax turns from the Income Tax Department and also filed an application under Section 311 of Code of Criminal Procedure to issue summons to Mrs.Asha N.Doshi, wife of the complainant. Later those two applications were dismissed as not pressed by order dated 1.3.2006. When the case was posted for the defence witnesses, the Respondents have filed a list of defence witnesses, in which the same two persons has been cited as the defence witnesses by name Mrs.Asha N.Doshi, wife of the complainant and other person is a Income Tax Officer (Chief Commissioner of Income Tax I, being Administrative Head), Nungambakkam, Chennai (with all income tax returns submitted by the assessee Mukesh N.Doshi). The learned Judicial Magistrate directed issue of process to those witnesses. Aggrieved against the same, these Criminal Original Petitions have been filed to set aside the order, granting permission to examine those witnesses.
5. As regards the said two witnesses, the Petitioner has no grievance in respect of the 2nd witness, and he is resisting only the summoning of the 1st witness Mrs.Asha N.Doshi, who is wife of the complainant.
6. Mr.A.Natarajan, the learned senior counsel for the Petitioner would vehemently contend that in the entire cross examination of the complainant, the Respondents did not dispute the identity of the complainant. On the other hand, there is no scope for doubting the identity of the complainant, as they are known to each other for a long time, having long term business transaction between them. The learned senior counsel would further contend that taking advantage of the short name of the complainant given in the documents, such as Forms given when the account was opened in the Bank, driving licence of the complainant, Pancard, wherein the short name of the Petitioner has been given as M.N.Doshi, instead of long name Mukesh N.Doshi, with deliberate intention to harass the complainant and to delay the proceedings, the wife of the complainant is sought to be examined as the defence witness, who is in no way connected with the proceedings. He would further contend that the learned Judicial Magistrate, without considering whether the examination of the said witness is needed for just decision of the case, has permitted the said defence witness to be summoned by the Respondents, which is not in accordance with law.
7. The reason assigned by the Respondents to examine the wife of the complainant is to identify the complainant on the ground that the documents marked through PW.2, the Bank Officer tend to create a doubt regarding the identity of the complainant. At the outset, the learned Magistrate is not bound to issue process to compel the attendance of the complainant’s wife as the defence witness, as the accused has no right to summon the complainant’s wife to examine her as a witness on their side.
8. The Magistrate in exercising his discretion to allow the accused to summon the defence witness should not prejudice the complainant merely on a doubt entertained by the accused, without any basis. His consideration should only be that such examination is needed for just decision of the case.
9. For the sake of minor discrepancy in the evidence of PW.2, identity of the complainant cannot be doubted and for that purpose, the wife of the complainant, who is in no way connected with the proceedings, should be put to the test of process of cross examination by the Respondents. It is pertinent to point out that the identity of the complainant was not disputed at any point of time and even when he was in the box, no suggestion has been made to him, doubting his identity. Hence, the summoning of the 1st witness mentioned in the list of witness as a defence witness would definitely be not in the interest of the case and it can never be said that it is for the just decision of the case.
10. For the above said reasons, the impugned order of the learned Judicial Magistrate, giving permission to summon the 1st witness Asha N.Doshi is set aside and these Criminal Original Petitions are partly allowed and in all other respects, these Criminal Original Petitions are dismissed.
Srcm
To:
The Public Prosecutor, High Court,
Madras