Crl.OPs.
These Criminal Original Petitions have been filed under
Section 407 of Criminal Procedure Code to withdraw and transfer the case in S.T.C.Nos.2865, 2867, 2866 and 2868/2007 pending on the file of the learned XII Judge, Small Causes Court/Special Magistrate, Chennai to the file of any other Court of competent jurisdiction in Chennai.
For Petitioner : Mr.S.Rayhan For Respondent : Mr.T.Ashok Kumar These criminal original petitions have been filed under
Section 407 Cr.P.C to withdraw and transfer the cases in S.T.C.Nos.2865, 2867, 2866 and 2868/2007 from the file of the learned XII Judge, Small Causes Court (Special Magistrate) to the file of any other court in Chennai competent to try the cases. The accused in all the four STCs is the petitioner in these criminal OPs. He has pleaded for transfer of the cases from the present trial court to any other court on the ground that he was not given reasonable opportunity to defend himself in the criminal cases pending against him and that the Presiding Officer of the trial court expressed her decision in the open court to convict him.
2. Mr.S.Rayhan, learned counsel for the petitioner submitted that when the matter was taken up for continuation of trial by the trial court, the petitioner filed petitions under
Section 91 of Cr.P.C to direct the respondent/complainant to produce three documents which were considered to be vital for the defence case of the petitioner herein/accused and a petition under
Section 311 Cr.P.C for recalling PW-1 to cross-examine him relating to those documents regarding the production of which petitions under
Section 91 of the Cr.P.C were filed; that such petitions were filed separately in all the above said STCs; that the learned XII Judge, Small Causes Court (Special Magistrate) dismissed all those petitions, pursuant to which the petitioner in all the criminal Ops/accused in all the above said STCs filed copy applications to get certified copies of the orders for filing necessary revision before the High Court; that the learned XII Judge of Small Causes Court(Special Magistrate), who initially adjourned the case to a couple of hearings so as to enable the petitioner/accused to get the certified copies and file necessary revision before the High Court, at last refused to grant any more adjournment and dismissed the petitions filed by him in all the above said STCs on 17.06.2009; that before dismissing the said petitions filed under
Section 309 Cr.P.C, the trial judge openly declared her intention to convict the petitioner/accused and that hence the petitioner/accused was constrained to approach this court stating that he lost his faith in the trial court.
3. The learned counsel for the petitioner argued that the reasonable request made on behalf of the petitioner/accused to grant adjournment so as to enable him to file revisions before the High Court against the orders passed in the petitions filed under
Section 91 of Cr.P.C and 311 of Cr.P.C was turned down by the trial court; that besides refusing to grant adjournments the trial judge declared in the open court that the accused would be punished and he could file appeals against his conviction and that the same would reveal the fact that the trial judge has already made up her mind to convict the petitioner/accused.
4. On the other hand, Mr.T.Ashok Kumar, learned counsel for the respondent/complainant in all these petitions would contend that the present petitions are the continuation of the efforts made by the petitioner/accused person to stall the proceedings and drag on the case as long as possible and that when his attempt to drag on the proceedings was sought to be thwarted, the petitioner has come forward with these petitions vexatiously for the transfer of the cases. The learned counsel for the respondent also drew the attention of the court to the fact that all these cases had been originally pending on the file of the VII Metropolitan Magistrate, Chennai and the same were withdrawn from the file of the said court and transferred to the file of the XII Judge, Small Causes Court (Special Magistrate) by an order of this court dated 26.10.2007 made in Crl.O.P.Nos.28860 to 28863/2007; that the said transfer order was made at the instance of the petitioner herein/accused; that subsequent to the said order of transfer, the case resulted in the conviction of the petitioner herein/accused in all the above said STCs by judgment dated 03.03.2008; that thereafter the petitioner herein/accused preferred appeals in C.A.Nos.128/2008 to 131/2008 on the file of the Sessions Court which came to be disposed of by the learned VI Additional Sessions Judge, Chennai by setting aside the conviction and remanding the STCs back to the trial court, namely the court of the XII Small Causes Judge (Special Magistrate) with detailed directions regarding what are to be done and what should not be done; that the lower appellate court in the said order of remand also directed the trial judge to complete the proceedings and dispose of the case within two months from the date of receipt of the order of the appellate court along with case records; that there after, the petitioner herein/accused, acting against the spirit of the direction found in the remand order, had chosen to file petitions under
Section 91 Cr.P.C for direction to the complainants to produce certain documents and petitions under
Section 311 Cr.P.C for recalling PW-1; that the trial judge rightly dismissed both those petitions; that there after the petitioner/accused in the guise of filing revisions against the said orders were simply protracting the case which made the trial court to dismiss the petition filed under
Section 309 Cr.P.C on 17.06.2009, after allowing such petitions on previous occasions and that the court below rightly closed the defence evidence because of the consistent refusal to produce further defence witnesses. It is the further contention of the learned counsel for the respondent/complainant that the present petitions are also intended to protract the case as long as possible and that hence the petitions seeking transfer of the cases should be dismissed.
5. This court carefully considered the submissions made on either side and also perused the materials available on record including the petition, affidavits and documents produced in the form of typed set of papers and also the remarks received from the trial court.
6. The petitioner herein in all these criminal original petitions figures as accused in S.T.C.Nos.2865, 2867, 2866 and 2868/2007 presently pending on the file of the learned XII Judge, Court of Small Causes, Chennai (Special Magistrate). All the four STCs were cases instituted by the respondents herein on private complaints for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 based on four dishonoured cheques issued by the petitioner herein in favour of the respondents. The cases were originally instituted on the file of the VIII Metropolitan Magistrate, Chennai and they were taken on the file of the said court as C.C.Nos.2364/2005, 2365/2005, 2368/2005 and 2369/2005.
7. Alleging that the respondent herein/complainant was more influential in wielding money and political power and that the petitioner was having a reasonable apprehension that he might not get a fair justice if the same was tried by the learned VIII Metropolitan Magistrate, the petitioner herein preferred four criminal OPs in Crl.O.P.Nos.28860 to 28863/2007 for the transfer of those cases from the file of the VIII Metropolitan Magistrate to any other court. The above said criminal OPs filed by the petitioner in all the four criminal cases instituted against him by the respondents were allowed and the above said criminal cases were withdrawn from the file of the learned VIII Metropolitan Magistrate and transferred to the file of the learned XII Judge, Small Causes Court (Special Magistrate), Chennai.
It is pertinent to note that previous to the above said order of transfer, Sreeja Ravi, the complainant in C.C.No.2368/2005 now S.T.C.No.2368/2007 filed a criminal OP under
Section 482 Cr.P.C namely, Crl.O.P.No.21263/2007 seeking a direction to the learned VIII Metropolitan Magistrate, George Town, Chennai to complete the trial of the said case within a time to be fixed by this court. This court, by an order dated 18.07.2007 directed the learned VIII Metropolitan Magistrate, George Town, Chennai to expedite the trial and dispose of the case within two months from the date of receipt of that order. Thereafter, the petitioner approached this court by way of Crl.O.P.Nos.28860 to 28863/2007 for transferring the cases, in which this court passed an order dated 26.10.2007 transferring the said cases to the file of the XII Judge, Small Causes Court (Special Magistrate). This court, by the said order of transfer also directed the judge of the transferee court, namely XII Judge, Small Causes Court, Chennai (Special Magistrate) to dispose of those cases within two months from the date of receipt of the records from the VIII Metropolitan Magistrate, George Town, Chennai. It seems on transfer to the court of XII Judge, Small Causes Court, Chennai, the cases were renumbered as STC Nos.2865 to 2868/2007.
8. After examining the witnesses on the side of the complainant and the witnesses produced on the side of the accused, the learned XII Judge, Small Causes Court, Chennai convicted the petitioner in all those cases for offences under Section 138 of the Negotiable Instruments Act by judgments dated 03.03.2008. The said convictions were set aside by the learned VI Additional Sessions Judge, Chennai by judgments dated 02.02.2009 made in C.A.Nos.128 to 131/2008. Besides setting aside the conviction, the learned lower appellate judge chose to remand those cases to the trial court for fresh disposal giving specific directions as to what are all the opportunities to be given to the accused persons and the complainants.
9. In the lower appellate court, the petitioner herein (accused) had given a list of witnesses, who were sought to be examined on his side and a list of documents sought to be produced on the side of the accused. Eight persons were shown to be the witnesses, who were sought to be examined on the side of the accused after remand. They were 1) Sonukumar, 2) S.Ramachandran, 3) Rashik Lal, 4) Sajid, 5) Bindu, 6) Madan Mohan, 7) K.Ravi and 8) Vijay Dhandapani (petitioner herein/accused). The documents which were sought to be produced were 1) bank statements of the complainant and power of attorney for the years 2000-2005, 2) copy of the complaint filed by the respondent under
Section 200 Cr.P.C before the Hon'ble XI Metropolitan Magistrate, Saidapet on 12.04.2004 in Crl.M.P.No.1141/2004 along with documents and 3) copy of the reply notice dated 15.05.2004. In fact when the petitioner/accused approached this High Court for transfer of the cases from the VIII Metropolitan Magistrate to any other court, the respondents did not raise any serious objection and the same will show their endeavour to see that dilatory tactics adopted by the petitioner/accused was put to an end. Thereafter, even in the appeals before the lower appellate courts, the respondents/complainants did not raise any serious objection for giving an opportunity to examine the persons desired by the petitioner herein/accused as witnesses before the trial court. In view of the same, the lower appellate court, after setting aside the conviction remanded the STCs for fresh disposal with the following directions:-
(1) The appellant/accused is permitted to examine all the witnesses mentioned above except the witnesses No.3 to 5 who have already been examined as defence witnesses including himself by filing the petition under
section 315 Cr.P.C. If already has not been filed and no further list of defence witnesses shall be allowed by the trial court at any costs.
(2) The trial court shall examine all the remaining defence witnesses within the period of two months from the date of receipt of this order along with the case records by directing the appellant/accused to produce the witnesses then and there for the hearing fixed by the trial court and such hearings shall not extend beyond 10 days for each hearing and should examine minimum two witnesses for each hearing by giving preference to this case as a special one being the remanded one.
(3) The petitioner/accused is directed to produce all the defence witnesses to be examined except those who were already examined before the court by himself voluntarily with or without summons and for the purpose of summons he is permitted to avail by taking private summons, hand over the summons etc in order to avoid the delay in examining the defence witnesses.
(4) The relevant documents to be relied upon by the appellant/accused shall be marked only through the witnesses already mentioned in the list who were not examined earlier and through the accused himself before the trial court and without seeking any more directions from the trial court in this regard.
(5) The complainant/respondent is permitted to recall the witnesses already examined in view of the additional witnesses examined by the defence and the additional documents marked if necessary by recalling P.W.1 and other witnesses by taking necessary steps under the relevant provisions of law and for the same the trial court has to permit the same. Regarding the document No.1 Bank statements of complainant/power of attorney for the years 2000-2005 to be produced only if they are relevant for the case which could be decided by the trial judge.
(6) The trial court shall not permit any additional list of witnesses or documents other than one furnished before the appellate court as mentioned in this order by the appellant/accused.
(7) The trial court is directed to proceed with the case from the stage of continuation of defence withesses and to dispose of the case according to law within three months from the date of receipt of records from this court and the compliance report is to be submitted in this regard to this court.
(8) The parties are directed to appear before the learned XII Judge, Small Causes Court, Chennai on 23.02.2009 to proceed further in this regard.
The petitioner did not bring it to the notice of the lower appellate court at the time of disposal of the said criminal appeals that the documents sought to be produced on his side as defence documents were not available with him and that he intended to file a petition under
Section 91 Cr.P.C seeking a direction to the respondents/complainants to produce those documents. Had it been made known to the learned lower appellate judge, the lower appellate judge would have incorporated the clear directions regarding the same. As those documents are documents produced in a court of law in a different proceedings, certified copies of the same could have which would have been obtained by the petitioner himself. Instead of doing it, and without revealing his intention to seek a direction against the complainants to produce those documents, the petitioner/accused had obtained orders of remand remitting the cases back to the trial court for fresh disposal. The lower appellate court had issued clear directions to the effect that the accused should produce all the defence witnesses except those who were already examined before the court with or without summons. The accused was also permitted to avail the benefit of taking private summons or hand over summons in order to avoid delay in summoning and examination of the defence witnesses. It was also made clear that relevant documents to be relied on by the accused should be marked through the witnesses who were not examined earlier and whose names were found in the list produced before the lower appellate court without seeking any more direction from the trial court in that regard. Despite such clear and elaborate directions, the petitioner/accused seems to have filed petitions to direct the respondent/accused to produce those documents, which the petitioner/accused wants to rely on as defence documents. The lower appellate court had given permission to the respondent herein/complainant to recall PW-1 and other witnesses, if necessary in view of the evidence to be adduced through the additional witnesses to be examined on the side of the petitioner herein/accused. However, the petitioner herein/accused has chosen to file a petition to recall PW-1 without producing the witnesses to be examined on his side and without producing the documents sought to be relied on by him. Even regarding the first set of documents, namely bank statements and power of attorneys for the years 2000 - 2005, the lower appellate court has directed that the relevency of the same should be decided by the trial court. Despite the fact that such detailed directions have been given by the lower appellate court while remanding the cases to the trial court, the petitioner seems to have devised ingenious method by filing petitions under
Section 91 Cr.P.C and
Section 311 Cr.P.C seeking directions to the complainant to produce the documents which were sought to be relied on by the accused and to recall PW-1 in all those cases respectively with a view to drag on the case as long as possible.
10. The learned counsel for the respondent has rightly contended that the intention of the petitioner is to frustrate the complainants thereby coerce them to come to terms with him. From the report of the trial court, it is quite obvious that despite the fact that there had been two directions from the High court and one direction from the lower appellate court to dispose of the case within two months, the trial judge granted time liberally and adjourned the matter even at the risk of being called upon to explain why the case was not disposed of within the time granted by the appellate court and the High court; that the petitioner had shown his reluctance to proceed with the cases and that ultimately, the trial court has chosen to close the defence evidence and post the matters for arguments. At that stage alone, the petitioner has come forward with the present petitions seeking transfer of the case from the present trial court to any other court on unacceptable and untenable allegations.
11. This court is satisfied that the present petitions are nothing but an attempt to drag on the case. The apprehension expressed by the petitioner is not reasonable. Hence, this court comes to the conclusion that there is no merit in these criminal original petitions and they deserve to be dismissed. Accordingly all the four criminal original petitions Crl.O.P.Nos.12242 to 12245 of 2009 are dismissed. Consequently connected MPs in all the OPs are closed.
05.08.2009 asr Index : Yes Internet : Yes To XII Judge, Small Causes Court, Chennai (Special Magistrate) P.R.SHIVAKUMAR, J.