Mr.U.Ravikumar,Partner,M/s. Andavar Solvent Oil Products & Refiners v. M/s.Foods, Fats and Fertilizers Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 05-10-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL REVISION CASE No.611 OF 2007Mr.U.Ravikumar,Partner,M/s. Andavar Solvent Oil Products & Refiners...Petitioner-vs-M/s.Foods, Fats and Fertilizers Ltd.,rep.by its Power AgentMr.M.Sunder Singh...RespondentPetition under Section 482 of the Code of Criminal Procedure.For petitioner : Mr.M.Abdul Razack for Razhaq AssociatesFor respondent : Mr.M.J.Jaseem MohamedJ U D G M E N TThis revision is filed against the order, dated 08.02.2007,passed by the VIII Metropolitan Magistrate, George Town, Chennai, inM.P.No.3733 of 2006 in C.C.No.4478 of 2001.2. Petitioner is accused in the calendar case, which has beentaken on file on the strength of dishonour of a cheque, allegedlydelivered by the accused to the respondent. The case is in part-heardstage. The accused, pursuant to the questioning under Section 313 (1) (b)Cr.P.C., filed a petition in M.P.No.3733 of 2006 under Section 311Cr.P.C., requesting to examine the witnesses, namely, (i) M.J.JeseemMohammed, counsel for the complainant, who received the amount from theaccused on behalf of the complainant; (ii) Manager, Corporation Bank,Armenian Street, Chennai, and (iii) Manager, State Bank of India, MainBranch, Chennai, who issued certificates of payments. The said petitionwas stiffly opposed by the respondent/complainant, on the ground thatexamination of counsel for the complainant by defence was nothing but an https://hcservices.ecourts.gov.in/hcservices/ abuse of process of law and against the provision under Section 126 of theIndian Evidence Act. 3. After hearing both the parties, the trial Court allowed thepetition in part, permitting the petitioner to examine the Bank Managersand turning down the request for examination of the counsel on record forthe complainant.4. Aggrieved over the said order, the accused is before thisCourt by way of this revision.5. The main stay of the contention of the petitioner is thattowards the cheque amount in C.C.No.4478 of 2001 alone, he made payment bymeans of a banker's cheque to Mr.Jeseem Mohammed, counsel for thecomplainant on record, and though the complainant, in his cross-examination admitted that he received the amount through his advocate, hedenied that the receipt was not towards the cheque in C.C.No.4478 of 2001. 6. On the other hand, it is contended by the learned counsel forthe respondent that under Section 126 of the Indian Evidence Act, anadvocate, appearing for the party, has got a privilege with regard to theintimations received by him and hence the request for examination of thecounsel on record need be not entertained. 7. In this connection, it is profitable to refer Section 126 ofthe Indian Evidence Act, which reads as follows :"126.Professional Communications.- No barrister,attorney, pleader or vakil shall at any time bepermitted, unless with his client's express consent,to disclose any communication made to him in thecourse and for the purpose of his employment as suchbarrister, pleader, attorney or vakil, by or on behalfof his client, or to state the contents or conditionof any document with which he has become acquainted inthe course and for the purpose of his professionalemployment, or to disclose any advice given by him tohis client in the course and for the purpose of suchemployment :Provided that nothing in this section shallprotect from disclosure -(1) any such communication made infurtherance of any illegal purpose,(2) any fact observed by any barrister,pleader, attorney or vakil, in the courseof his employment as such, showing that any https://hcservices.ecourts.gov.in/hcservices/ crime or fraud has been committed since thecommencement of his employment.It is immaterial whether the attention of suchbarrister, pleader, attorney or vakil was or was notdirected to such fact by or on behalf of his client."8. Learned counsel for the petitioner would submit that theabove said provision has no application to the circumstances of this case,since the advocate has received the payment from the petitioner and madean endorsement on the cheque itself towards receipt of the same, however,he has not mentioned to which account it was credited.9. The trial Court has observed that calling of counsel for thecomplainant on record as a defence witness is not desirable nor isnecessary to a just decision of the case and the prayer for citing thecounsel on record as a defence witness is noting but dragging on theproceedings and dodging the legal standards and that a diligent perusal ofquestioning of the accused under Section 313 (1) (b) Cr.P.C. shows that hedid not state that he paid the amount to the counsel on record and hewanted to examine the counsel as a defence witness.10. Learned counsel for the petitioner would draw attention ofthis Court to a decision rendered by the Hon'ble Apex Court in C.Antony v.K.G.Raghavan Nair, 2002 (9) AD (S.C.) 0169 : 2002 ACT (S.C.) 1594, inwhich it is held as under :"7. If we examine the judgment of the two Courtsbelow in this appeal in the light of the law laid downby this Court in the above cited cases, it is to beseen that the trial Court came to the conclusion thatnon-examination of advocate Vijay Kumar was fatal tothe case of the complainant/respondent because it isthe case of the respondent that he came to know theappellant through said Vijay Kumar and the amount inquestion was paid in the office of said Vijay Kumar.In such a situation, the trial Court came to theconclusion that when the appellant has set up apossible defence of having given a blank cheque toChandrappa Panicker in regard to a chit transaction,therefore, it was necessary for the respondentcomplainant to have examined the said Vijay Kumar toestablish the fact that Vijay Kumar indeed, persuadedthe respondent to advance the cash. We also thinkthis was a very necessary piece of evidence toestablish the fact that the respondent had in factadvanced a sum of Rs.26,500/- to the appellant. Froma perusal of the judgment of the High Court in this https://hcservices.ecourts.gov.in/hcservices/ regard, we find that there is absolutely no discussionon this point at all. The non-consideration of thisaspect of the case by the High Court, in our opinion,runs counter to the principles laid down in the abovereferred judgments of this Court." 11. In the above said case, the complainant/respondent came toknow the appellant through advocate Vijaya Kumar and the amount inquestion was paid in the office of the said Vijaya Kumar and, as per thefacts of the case, it was necessary for the complainant/respondent to haveexamined the said Vijaya Kumar to establish the fact that Vijaya Kumarpersuaded the respondent to advance the cash. 12. The Supreme Court took into consideration the role of theadvocate, which he played in persuading the respondent to advance cash,and it was also to be a necessary piece of evidence to establish the factthat the respondent had, in fact, advanced the amount to the appellant.The Apex Court expressed its displeasure on the non-consideration of thepoint by the High Court, observing that it would be contrary to theprinciples laid down by the Supreme Court.13. Learned counsel for the respondent garners support from aFull Bench decision of this Court In re C.S.Venkatachariar, A.I.R.(29)1942 Madras 691, SPECIAL BENCH, wherein, it is held as under :"A person who is appearing as counsel should notgive evidence as a witness. If in the course of theproceedings it is discovered that he is in a positionto give evidence and it is desirable that he should doso, his proper course is to retire from the case in hisprofessional capacity."14. Coming to the facts of the present case, concedingly,learned counsel on record for the complaint received the amount from theaccused and acknowledged receipt of the same, but, he has not mentioned,for which case, it was received. The cross-examination of P.W.1 in thisregard is to the effect that the above said amount was received by hiscounsel for another case on the file of XIV Metropolitan Magistrate Court,which was disposed of. It is not known whether the banker's chequereferred to by the petitioner herein was produced in the other case inC.C.No.10266 of 2001 on the file of XIV Metropolitan Magistrate Court,Chennai. Had the copies of depositions and the judgment in the other casebeen produced before the VIII Metropolitan Magistrate for the presentcase, there would have been a just decision. However, the date of disposalof the other case is not mentioned herein.15. Negligence could be attributed to both sides, for notmentioning the number of other case in the acknowledgement made on thebanker's cheque. The petitioner should have insisted on the learned https://hcservices.ecourts.gov.in/hcservices/ counsel to mention the number of the case in the acknowledgement and thelearned counsel also owes duty to mention the case number, for which hereceived the amount, in his acknowledgement. Admittedly, neither of themwas done. Even if the counsel on record for the complainant was examinedbefore the Court, he might depose in line with the oral testimony of hisclient, namely, P.W.1. So, examining the learned counsel for thecomplainant ' at this stage' may not serve any purpose. Whether theexamination of the counsel on record for the complainant be ordered ornot, may be discussed after the plausible evidence is introduced into therecords of the present case and, thereafter, if it is warranted, thepetitioner may approach the Court for examination of the counsel, inwhich event, it is for the trial Court to decide, according to thecircumstances.16. Without producing the available evidence, namely, copies ofdepositions of the witnesses and the judgment in C.C.No.10266 of 2001 onthe file of XIV Metropolitan Magistrate Court, Chennai, the contentionthat the amount was paid by the petitioner to the counsel of thecomplainant for this case alone cannot be countenanced. Even in thechief-examination, P.W.1, complainant, has deposed that only Rs.20,000/-was paid by the accused to him towards the case and, except the saidamount, the accused did not pay any further amount and that forC.C.No.10266 of 2001, the accused paid Rs.2,50,000/-.17. For completion of oral and documentary evidence on record inthe present case, it is necessary for the petitioner to produce copies ofthe above said records before the VIII Metropolitan Magistrate, Chennai,and, in the absence of those records, no complete adjudication could berendered by the said Court. In other words, in order to unearth the truthand to decide the liabilities of the parties, it is indispensable to havethe materials in C.C.No.10266 of 2001 in this case.18. Under the circumstances, this Court is left with no otheroption except to direct the petitioner to produce the copies ofdepositions of witnesses in C.C.No.10266 of 2001 on the file of XIVMetropolitan Magistrate in the present case, in which event, the learnedVIII Metropolitan Magistrate may receive the same as per the procedureand, if any of the parties is aggrieved or any necessity arises forexamination of any witnesses, appropriate remedy may be sought for by theparties, whereupon it is for the trial Court to grant remedy, as per thesettled position of law. 19. In view of the aforesaid observation, the prayer in thispetition cannot not be granted. Instead, the petitioner may seek hisremedy before the trial Court, subject to the observations made in thisorder. https://hcservices.ecourts.gov.in/hcservices/

20. Criminal Original Petition is dismissed in the above terms.Consequently, the connected Criminal M.P.No.1 of 2007 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1. The VIII Metropolitan Magistrate,George Town, Chennai.2. -do-thro' The Chief Metropolitan Magistrate,Egmore, Chennai.1 cc To M/s.Razhaq Associates, Advocate, SR.61864.1 cc To Mr.M.J.Jaseem Mohammed, Advocate, SR.61770.CRL.R.C.No.611 OF 2007VC(CO)RVL 17.10.2007