@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe petitioner/accused has preferred the instant Criminal Revision Petition as against the order dated 17.8.2012 in Crl. M.P. No. 1201 of 2008 in C.C. No. 149 of 2005 passed by the Learned Judicial Magistrate No. 1, Kuzhithurai. The Learned Judicial Magistrate No. 1, Kuzhithurai, while passing the impugned order in Crl. M.P. No. 1201 of 2008 in C.C. No. 149 of 2005 on 17.8.2012 has inter alia observed that ''the witnesses mentioned by the petitioner in the Witness Schedule to be examined'' are not very much relevant to the facts and circumstances of the case and that it will take long time to examine those witnesses even if they are allowed to be examined and consequently dismissed the petition.
2. The learned counsel for the petitioner/accused urges before this Court that the trial Court ought to have given an opportunity to the petitioner/accused to examine the witnesses mentioned in the Schedule by serving summons upon them through Court and those witnesses are very much relevant to be examined to prove the defence of the petitioner in C.C. No. 149 of 2005.
3. Yet another submission of the learned counsel for the petitioner/accused is that the ingredients of Section 138(a) of Negotiable Instruments Act 1881, specifies that the cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. Also, that the respondent/complainant has no cause of action to file the complaint, inasmuch as there is no legally enforceable ''Debt or Liability'' Lastly, it is the stand of the petitioner/accused that the impugned order in Crl. M.P. No. 1201 of 2008 dated 17.8.2012 in C.C. No. 149 of 2005 has been passed by the trial Court in an erroneous fashion.
4. Per contra, it is the submission of the learned counsel for the respondent/complainant that the main case C.C. No. 149 of 2005 on the file of trial Court has been posted for arguments and the witnesses mentioned in the Schedule of Witnesses by the petitioner/accused to examine them before the trial in the case are irrelevant witnesses but the trial Court has assigned to a reasonable conclusion which need not be interfered with by this Court, at this point of time sitting in Revision.
5. It is to be noted that whether the cheque dated 6.8.2004 has ''Live force'' or it has lost its validity as per law etc is a matter for evidence to be adduced by the parties and it is for the trial Court to appreciate the same at the time of arguments in main revision.
6. The primordial contention advanced on behalf of the petitioner/accused is that on the date of alleged borrowal on 6.8.2004, the petitioner/accused has been taking treatment at Nellore in Andhra Pradesh and on that date, he has written a letter to witness No. 2 stating that during the relevant point of time he has been at Nellore and therefore, he has not been present at Palliyadi at the place where the cheque has been purportedly emanated so as to give cause of action to the complainant to project the complaint before the trial Court.
7. It transpires that the cheque which is subject matter of issue is dated 6.8.2004, as per complaint filed by the respondent/accused in C.C. No. 149 of 2005. The petitioner/accused denies the purported borrowal claim of Rs. 2,00,000/- (Rupees two lakhs only) made by the respondent/complainant.
8. It comes to be known that P.W. 1 has been examined in chief on 12.9.2006 and his cross examination has been over on 21.9.2007. The revision petitioner/accused got himself examined as D.W. 1 on 18.12.2008 and his cross examination has been completed on 5.1.2009. Also, that the petitioner/accused has projected the Crl. M.P. No. 1201 of 2008 before the trial Court citing the witnesses to be examined by giving it by form of a Schedule. A perusal of the Schedule shows that he has given seven witnesses to be examined on his side to substantiate his case and in this regard, he has filed Crl. M.P. No. 1201 of 2008 u/s 254(2) of Cr. P.C.
9. Ordinarily, the Learned Magistrate is bound to examine all the witnesses produced on the side of the petitioner/accused and he has no discretion in the matter in issue. Equally, the Magistrate is not bound to issue process to compel the attendance to any witness either on the petition of the complainant or the accused. The entire gamut of the matter in this regard is purely within his domain as opined by this Court. It is always open to the Learned Magistrate to reject the prayer of the petitioner/accused when the request to examine the witness as mentioned in the schedule are not bona fide and made deliberately only with a view to precipitate the pending proceedings.
10. Likewise, the Learned Magistrate either as a matter of routine or automatically cannot refuse to examine the witnesses given in the list filed by the accused either in defence or otherwise. As a matter of fact, the ingredients of Section 254 of Cr. P.C. applies to Accused/Defence side. Now, in the instant case on hand, the prosecution is u/s 138 of Negotiable Instruments Act.
11. A perusal of the Witnesses Schedule filed by the petitioner/accused in Crl. M.P. No. 1201 of 2008 shows that the petitioner has named totally seven witnesses to be examined to prove or substantiate his point of view relating to the stand taken by him in the main case. Among the seven witnesses therein cited by him, one such person is a Superintendent of Police, Tamil Nadu Finger Print Bureau, Chennai, an expert witness. The next witness mentioned in the schedule is a Doctor at Nellore and the reason to examine him is mentioned that the petitioner/accused has taken treatment with him on the purported date of cheque. The other witnesses 2 to 5 have been named specifically by the petitioner/accused in the witness schedule list and according to him, they are to be examined necessarily.
12. It is to be noted that the Magistrate on appreciation of either prosecution or accused has discretion to issue processes to compel the attendance of any witness. In fact, the Magistrate can examine witnesses even though not named in the list.
13. At this stage, this Court worth recalls a decision in
14. Also, this Court aptly points out the decision 1954 CrlJ at page 144 wherein it is held that ''Discretion'' cannot be exercised to the detriment of the applicant.
15. Continuing further, the witness mentioned by the petitioner from the Tamil Nadu Finger Print Bureau whether is valid to be examined or otherwise may be determined by the trial Court in view of the decision of Hon''ble Supreme Court in
16. It is to be noted on going through the order passed by the trial Court in Crl. M.P. No. 1201 of 2008 on 17.8.2012 this Court is of the considered view that the trial Court has simply stated that "... It is seen that the evidence sought to be received by the witness are not very much relevant to the facts and circumstances of this case and that it will take long time to examine witnesses even they are allowed to be examined..." and such an observations made by the trial Court is not a short and cryptic one.
17. When the petitioner/accused has specified the names of the seven witnesses to be examined and the reason for their examination has also been made mention of in the Witness Schedule in Crl. M.P. No. 1201 of 2008 then, it is a primordial duty of the Learned Judicial Magistrate No. 1, Kuzhithurai to discuss the merits and demerits of the witnesses to be examined and whether the request made by the petitioner/accused can be acceded to in the interest of justice. Also, if an order is passed by the Court of Law bereft of necessary qualitative and quantitative details, then it may be just from the point of view of the Court which passes the said order. However, the said order will be an unjust one from the point of view of an aggrieved person. It is needless for this Court to point out that a reasoned/speaking order will have the appearance of justice.
18. In this connection, this Court relevantly points out that after the evidence on both sides has been closed and when the matter has been posted for arguments or the matter is ready for hearing of the arguments in the main case for a long time then it is not open to a party to project a petition u/s 254(2) of Cr. P.C. to examine the witnesses mentioned in the schedule at the fag end of the main trial of the case, obviously with a view to delay the further progress of the trial. But, merely because of party has projected a petition u/s 254(2) of Cr. P.C. in regard to summoning of witnesses mentioned in the schedule filed by him, the said petition cannot be rejected by a competent Court without any valid reasons.
19. In the instant case, even though the main case in C.C. No. 149 of 2005 has been pending for hearing of the arguments and taking note of the fact that the petitioner/accused has projected the Witnesses Schedule citing the witnesses to be summoned by him, this Court is of the considered view that the Learned Magistrate has no power to limit to prove witnesses to be examined on the side of the petitioner/accused.
20. Further more, in the instant case, the Learned Magistrate while dismissing the Crl. M.P. No. 1201 of 2008, has preempted the petitioner/accused in seeking his remedy as provided to him under the Code of Criminal Procedure. Instead, he has passed a cryptic/short order. As such the said order is liable to be interfered with by this Court, in the interest of justice. Accordingly, this Court interferes with the said order passed by the trial Court in Crl. M.P. No. 1201 of 2008 and set aside the same by allowing the criminal revision petition in furtherance of substantial cause of justice.
21. In the result, the criminal revision petition is allowed. The order passed by the Learned Judicial Magistrate in Crl. M.P. No. 1201 of 2008 dated 17.8.2012 is hereby set aside for the reasons assigned by this Court in this Criminal Revision. No order as to costs. Consequently, connected M.P. is also closed. The Learned Judicial Magistrate No. I, Kuzhithurai is directed to restore Crl. M.P. No. 1201 of 2008 to his file and further directed to hear the arguments of both sides and to dispose of the said Crl. M.P. 1201 of 2008 in C.C. No. 149 of 2005 on merits afresh in the manner known to law and in accordance with law by passing a reasoned/detailed order, assigning reasons. Since the cheque transaction is of the year 2004 and nearly eight years have rolled by, the parties are directed to lend a helping hand in regard to the completion of the main proceedings in C.C. No. 149 of 2005. In any event, the trial Court is directed to dispose of the main case in C.C. No. 149 of 2005 (including Crl. M.P. after restoration) within a period of three months from the date of receipt of copy of this order. Also, the Learned Judicial Magistrate No. 1, Kuzhithurai is directed to dispose of main C.C. No. 149 of 2005 on his file in a dispassionate approach untrammelled with any of the observations made by this Court in this revision.
