R.Dhanasekaran v. N.Dhakshinamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.08.2011CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.O.P.No.21026 of 2010andM.P.Nos.1 of 2010 and 1 of 2011R.Dhanasekaran.. Petitioner/Accused.. Vs ..N.Dhakshinamoorthy.. Respondent/complainantPrayer:- Criminal Original Petition filed under Section 482 of theCode of Criminal Procedure, praying to call for the recordspertaining to Crl.M.P.No.7832 of 2009 in C.C.No.234 of 2008 on thefile of the learned Judicial Magistrate, Tambaram, and to set asidethe order dated 19.08.2010 passed in Crl.M.P.No.7832 of 2009 inC.C.No.234 of 2008 by the learned Judicial Magistrate, Tambaram.For Petitioner:Mr.S.BalasubramanianFor Respondent:Mr.T.P.SekarORDERThe petitioner herein is the accused in C.C.No.234 of 2008 onthe file of the learned Judicial Magistrate, Tambaram. Therespondent herein is the complainant, who filed a case against thepetitioner for an alleged offence under Section 138 of theNegotiable Instruments Act. The respondent herein also has filed anapplication under Section 91 of Cr.P.C., before the trial Courtseeking a direction from the learned Magistrate to the accused toproduce the undertaking letter dated 27.12.2007 given by theaccused to the complainant accepting the financial liability andalso about issuance of cheques. The said application was allowedby the learned Magistrate directing the accused to produce thedocument dated 27.12.2007 and also permitting the complainant tomark the copy of the said document, in case of failure on the partof the accused to produce the said document. Challenging the saidorder, the accused/petitioner herein had preferred this criminaloriginal petition before this Court.2.Learned counsel for the petitioner submits that theaccused cannot be compelled to produce any document to be evidencedagainst him, which is violative of Article 20(3) of theConstitution of India. The learned counsel for the petitioner hasalso relied on a decision of this Court reported in 1997 (III) CTC https://hcservices.ecourts.gov.in/hcservices/ 196 (K.Senthamarai and another Vs. State by Inspector of Police)and submitted that Section 91 Cr.P.C., cannot be exercised againstthe accused. It is further submitted by the learned counsel forthe petitioner that the respondent/complainant has not mentioned inhis application before the trial Court under whose possession theoriginal document is available. The learned counsel for thepetitioner also pointed out that even assuming for a moment, aletter was given by the accused to the complainant accepting theliability, such letter could be only in the possession ofcomplainant.3.Learned counsel for the respondent submitted that a Xeroxcopy of the letter dated 27.12.2007 is available with thecomplainant and it is signed by both complainant and the accused.The accused had admitted his liability and also mentioned about theissuance of cheques towards the liability.4.This Court has considered the submissions made by thelearned counsel on either side and perused the records.5.An application has been filed by the complainant underSection 91 Cr.P.C., for production of letter dated 27.12.2007 bythe accused. It is observed by the Hon'ble Supreme Court in adecision reported in A.I.R. 1965 Supreme Court 1251 (State ofGujarat Vs. Shyamlal) in paragraph No.33 as follows:-"33. Keeping the above considerations in mind, letus look at the terms of the section. It will be noticedthat the language is general, and prima facie apt toinclude an accused person. But there are indicationsthat the Legislature did not intend to include anaccused person. The words 'attend and produce' arerather inept to cover the case of an accused person. Itwould be an odd procedure for a Court to issue a summonsto an accused person present in Court 'to attend andproduce' a document. It would be still more odd for apolice officer to issue a written order to an accusedperson in his custody to 'attend and produce' adocument."6.Relying on the decision referred to above, this Hon'bleHigh Court has held in the decision reported in 1997 (III) CTC 196(K.Senthamarai and another Vs. State by Inspector of Police) inparagraph No.17 as follows:-"17. In the light of the discussion made in theabove paragraphs (33) and (36), the Apex Court held thatSection 94 (presently 91) Cr.P.C., on its trueconstruction, does not apply to an accused person.These decisions would make it clear that the order ofthe Magistrate issuing summons to the accused to producedocuments which are not only incriminating but alsolikely to be incriminatory is illegal." https://hcservices.ecourts.gov.in/hcservices/

7.This principle also has been followed by the MaduraiBench of this Court in a decision reported in (2008) 2 MLJ (Crl.)394 (H.Mohamed Ibrahim Kaleel and others Vs. State, by theInspector of Police), wherein, it is observed as follows:- "24. From the close reading of the decisionsreferred to earlier, it is needless to say that thepower enshrined in Section 91(1) of the said Code cannotbe invoked against any accused."8.Therefore, it is well settled principle of law that asummons to produce a thing or document as contemplated underSection 91(1) Cr.P.C., cannot be issued to a person accused of anoffence calling upon him to produce document or thing in order tomark it as evidence against the accused. In the said circumstances,the order passed by the learned Magistrate directing the accused toproduce the document dated 27.12.2007 is against law.9.Furthermore, the observation passed by the learnedMagistrate that in case of failure by the accused to produce thedocument, the complainant is permitted to mark the Xerox copy ofthe document is also against law.10.Section 65 of the Indian Evidence Act reads as follows:-"65. Cases in which secondary evidence relating todocuments may be given. - Secondary evidence may be givenof the existence, condition or contents of a document inthe following cases:-(a) When the original is shown or appears to be in thepossession or power - of the person against whom the document is sought to be proved, or of any person out ofreach of, or not subject to, the process of theCourt, or of any person legally bound to produce it,and when, after the notice mentioned in section 66,such person does not produce it;(b) When the existence, condition or contentsof the original have been proved to be admitted inwriting by the person against whom it is proved orby his representative in interest;(c) When the original has been destroyed orlost, or when the party offering evidence of itscontents cannot, for any other reason not arisingfrom his own default or neglect, produce it inreasonable time; https://hcservices.ecourts.gov.in/hcservices/ (d) When the original is of such a nature asnot to be easily movable;(e) When the original is a public documentwithin the meaning of section 74;(f) When the original is a document of which acertified copy is permitted by this Act, or by anyother law in force in [India] to be given inevidence;(g) When the original consists of numerousaccounts or other documents which cannotconveniently be examined in Court, and the fact tobe proved is the general result of the wholecollection.In cases (a), (c) and (d), any secondaryevidence of the contents of the documents isadmissible.In case (b), the written admission isadmissible.In case (e) or (f), a certified copy of thedocument, but no other kind of secondary evidence,is admissible.In case (g), evidence may be given as to thegeneral result of the documents by any person whohas examined them, and who is skilled in theexamination of such documents."11.Section 66 of the Indian Evidence Act reads as follows:-"66. Rules as to notice to produce.- Secondaryevidence of the contents of the documents referred to insection 65, clause (a), shall not be given unless theparty proposing to give such secondary evidence haspreviously given to the party in whose possession orpower the document is, [or to his attorney or pleader,]such notice to produce it as is prescribed by law; and ifno notice is prescribed by law, then such notice as theCourt considers reasonable under the circumstances of thecase:Provided that such notice shall not be required inorder to render secondary evidence admissible in any ofthe following cases, or in any other case in which theCourt thinks fit to dispense with it:-(1) When the document to be proved is itself anotice; https://hcservices.ecourts.gov.in/hcservices/ (2) When, from the nature of the case, the adverseparty must know that he will be required to produce it;(3) When it appears or is proved that the adverseparty has obtained possession of the original by fraud orforce;(4) When the adverse party or his agent has theoriginal in Court;(5) When the adverse party or his agent has admittedthe loss of the document;(6) When the person in possession of the document isout of reach of, or not subject to, the process of theCourt."12.It is not established that the original document isavailable with the accused and as the accused is not legally boundto produce the document, no notice could be issued to the accusedunder Section 66 of the Indian Evidence Act. Therefore, the Xeroxcopy of the document cannot be marked under Section 65 of theIndian Evidence Act. Therefore, the order passed by the learnedMagistrate is set aside and consequently, the petition filed by thecomplainant/respondent herein before the trial Court under Section91 Cr.P.C. is dismissed. 13.However, the learned Judicial Magistrate, Tambaram, isdirected to expedite the trial in CC.No.234 of 2008 and completethe same, within a period of two months from the date of receipt ofa copy of this order. In the result, this Criminal Original Petition is allowed.Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar/true copy/Sub Asst.RegistrarjrlTo1.The Judicial Magistrate, Tambaram.2.Do Through The Chief Judicial Magistrate, Chengalpattu1 cc To Mr.T.P.Sekar, Advocate, SR.50459Crl.O.P.No.21026 of 2010SP(CO)RH (6.9.11)