R.Meenakshi Sundaram v. T.V.Mylsamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.1211 of 2004andCrl.M.P.Nos.7879 & 9281 of 2004R.Meenakshi Sundaram.. Petitioner/Accused-vs-T.V.Mylsamy.. Respondent/complainant This Revision is filed against the order dated 23.2.2004 inC.R.P.No.1 of 2004 passed by the Additional District and SessionsJudge(FTC No.1) Coimbatore, setting aside the order inCrl.M.P.no.9680 of 2003 in C.C.NO.79 of 2002 on the file of theJudicial Magistrate No.2, Coimbatore dated 21.11.2003. For petitioner : : Mr.P.Uday Shankar For respondent : : Mr.S.N.ThangarajO R D E RThis revision has been preferred against the order passed bythe learned Additional District and Sessions Judge (Fast TrackCourt NO.1) Coimbatore in C.R.P.No.1 of 2004 which emanates froman order passed by the learned Judicial Magistrate,No.2,Coimbatore in C.M.P.No.9680 of 2003 in C.C.No.79 of 2002.2. The application was filed under Section 91 of Cr.P.C.requesting the Court to direct the respondent/complainant toproduce 12 documents listed under the said application. Thelearned trial Judge, after going through the affidavit to theapplication and also the counter filed by the respondent, haspassed an order directing the respondent to produce the documentswhich are available out of 12 documents listed under theapplication . Aggrieved by the order of the learned trial Judge,the accused has preferred a revision under C.R.P.No.1 of 2004before the Additional District and Sessions Judge, (Fast TrackCourt No.1) Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

3. The learned Sessions Judge, after meticulously goingthrough the order passed by the learned trial Judge and also aftergoing through the material records available, has allowed therevision thereby setting aside the order passed in Crl.M.P.No.9680of 2003 in C.C.No.79 of 2002 on the file of the JudicialMagistrate No.2, Coimbatore which necessitated the complainant inC.C.No.79 of 2002 to prefer this revision.4. Heard Mr.P.Uday Shankar,learned counsel appearing for thepetitioner and Mr.S.N.Thangaraj, learned counsel appearing for therespondent and considered their rival submissions.5. The learned counsel appearing for the respondent/complainant in C.C.NO.79 of 2002 would contend that only with aview to drag on the proceedings, the revision petitioner herein,who is the accused in C.C.No.79 of 2002, has filed theapplication under Section 91 of Cr.P.C. and that he has producedall the available documents sought for by the revision petitionerherein under the applications filed by him under Section 91 ofCr.P.C. dated 29.11.2002, 29.1.2003 and 23.9.2003 and under thepresent application. The learned counsel would further contendthat he has preferred a private complaint under Section 200 ofCr.P.C. for an offence under Section 138 of the NegotiableInstruments Act 1881 against the accused and in a petition likethis, this Court as well as the Honourable Apex Court have decidedthat it is a prerogative of the trial Court to decide and to passnecessary orders for summoning and production of a document underSection 91 of Cr.P.C., If the trial Court considers it as relevantand desirable and necessary to decide the issue in that particularcase can then order the petition filed under Section91 Cr.P.C. Insupport of his contention, the learned counsel appearing for therespondent relied on a decision reported in State of Orissa -vs-Debendra Nath Padhi(2005 Supreme Court Cases(cri) 415) wherein theHonourable Apex Court has held as follows:"Any document or other thing envisaged underthe aforesaid provision can be ordered to beproduced on finding that the same is"necessaryor desirable for the purpose of investigation,inquiry, trial or other proceedings under theCode". The first and foremost requirement ofthe Section is about the document beingnecessary or desirable. The necessity ordesirability would have to be seen withreference to the stage when a prayer is madefor the production. If any document isnecessary or desirable for the defence of theaccused, the question of invoking Section 91 at https://hcservices.ecourts.gov.in/hcservices/ the initial stage of framing of a charge wouldnot arise since defence of the accused is notrelevant at that stage. When the Sectionrefers to investigation, inquiry, trial orother proceedings, it is to be borne in mindthat under the Section a police officer maymove the Court for summoning and production ofa document as may be necessary at any of thestages mentioned in the section . Insofar asthe accused is concerned, his entitlement toseek order under Section 91 would ordinarilynot come till the stage of defence. When thesection talks of the document being necessaryand desirable, it is implicit that necessityand desirability is to be examined consideringthe stage when such a prayer for summoning andproduction is made and the party who makesit , whether police or accused. If underSection 227, what is necessary and relevant isonly the record produced in terms of Section173 of the Code, the accused cannot at thatstage invoke Section 91 to seek production ofany document to show his innocence. UnderSection 91 summons for production of documentcan be issued by court and under a writtenorder an officer in charge of a police stationcan direct production thereof. Section 91does not confer any right on the accused toproduce document in his possession to prove hisdefence. Section 91 presupposes that when thedocument is not produced process may beinitiated to compel production thereof."6.It is pertinent to note that it is not the case of therevision petitioner herein that the complainant has burked thedocuments, even after the filing of the application under Section91 of Cr.P.C. As per orders of the learned trial Judge, it is thecase of the respondent herein /complainant that the documentswhich are available out of the documents mentioned in theapplication under Section 91 of Cr.P.C have already been producedbefore the trial Court by the complainant. As observed by theHonourable Apex Court in the above said ratio decidenti, the rightto ask for the relief under Section 91 of Cr.P.C. arises for theaccused only at the stage of defence and not before that. It isclear that under Section 91 of Cr.P.C. if the document is notproduced, while it is proved that it is in possession of thecomplainant then only the applicant under Section 91of Cr.P.C. caninitiate proceedings to compel production thereof. As I havementioned earlier in this order, absolutely, there is no document https://hcservices.ecourts.gov.in/hcservices/ to produce by the accused to show that apart from the documentsproduced by the complainant, remaining documents mentioned underSection 91 of Cr.P.C. application are also available with thecomplainant.7.The learned counsel appearing for the revision petitionerrelying on a decision reported in M.S.Narayana Menon @Mani.v.State of Kerala and another(2006 Cri L.J.4607) wouldcontend that the burden of discharge is on the accused. Now weneed not go into the question whether the burden of discharge hasbeen proved or not because the case is only in trial stage.8. It is relevant to note herein the observation of thelearned Judge of this Court in K.Sivanandam-v.State rep.byInspector of Police, Special Police Establishment Central Bureauof Investigation Anti Corruption Branch, Chennai(2001-2 L.W.(cri)643) which runs as follows:"A perusal of the provisions of Section 91 ofCr.P.C. discloses that this section conferspower on the court to summon any document, ifthe Court finds that the summoning of such adocument is necessary or desirable in theinterests of justice. The word" whenever" withwhich Section 91 beings, indicates that theCourt is empowered to do so whenever the Courtfinds it necessary or desirable to act uponthat provision irrespective of the stage. Itis settled law that summoning of document ispurely a matter concerned with the discretionof the trial Court. But, the discretion shallbe exercised properly and judiciously. In otherwords, the trial Court must satisfy itselfwhether the document on which the accused seeksto rely has a bearing upon or is irrelevant tothe case. If upon satisfying itself that thedocument has no bearing, the trial Court iswell within its powers to decline the prayerand the same can be deemed that it hasexercised its discretion judiciously. It isalso held that while exercising this power, thetrial Court should not indulge in fishing orroving enquiry."9. Under such circumstances, I do not find any reason tointerfere with the order of the learned Sessions Judge inC.R.P.No.1 of 2004 on the file of the Additional District andSessions Judge,(Fast Track Court No.1) Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

10.In fine, the revision fails and the same is dismissedconfirming the order passed by the Additional District andSessions Judge,(Fast Track Court No.1) Coimbatore in C.R.P.No.1 of2004 dated 23.2.2004. Consequently, connected Crl.M.P.Nos.7879 &9281 of 2004 are also dismissed. The learned trial Judge isdirected to proceed with the trial in C.C.No.79 of 2002 anddispose of the same within a period of two months from the dateof receipt of a copy of this order. (At this juncture the learnedcounsel appearing for the revision petitioner would submit that atleast six months time may be given for disposal but the saidrequest is rejected.)Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1.The Judicial Magistrate No.2, Coimbatore2. -do- through the Chief Judicial Magistrate, Coimbatore3. The Additional District and Sessions Judge, (FTC NO.1)Coimbatore4. -do- through the Principal Sessions Judge, Coimbatore.1 cc to Mr.P. Udayashankar, Advocate, Sr. 387851 cc to Mr.N. Damodaran, Advocate, Sr. 38562Crl.R.C.No.1211/2004PV (CO)kk 6/7