Vijay Dhandapani v. Sreeja Ravi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.08.2009C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.Nos.12242 to 12245 of 2009andM.P.Nos.1 of 2009Vijay Dhandapani...Petitioner in all the Crl.OPs.Vs.Sreeja Ravi...Respondent in all theCrl.OPs.These Criminal Original Petitions have been filed under Section407 of Criminal Procedure Code to withdraw and transfer the case inS.T.C.Nos.2865, 2867, 2866 and 2868/2007 pending on the file of thelearned XII Judge, Small Causes Court/Special Magistrate, Chennai tothe file of any other Court of competent jurisdiction in Chennai.For Petitioner : Mr.S.Rayhan For Respondent : Mr.T.Ashok KumarThese criminal original petitions have been filed under Section407 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 othercourt in Chennai competent to try the cases. The accused in all thefour STCs is the petitioner in these criminal OPs. He has pleadedfor transfer of the cases from the present trial court to any othercourt on the ground that he was not given reasonable opportunity todefend himself in the criminal cases pending against him and that thePresiding Officer of the trial court expressed her decision in theopen court to convict him.2. Mr.S.Rayhan, learned counsel for the petitioner submittedthat when the matter was taken up for continuation of trial by thetrial court, the petitioner filed petitions under Section 91 ofCr.P.C to direct the respondent/complainant to produce threedocuments which were considered to be vital for the defence case ofthe petitioner herein/accused and a petition under Section 311 Cr.P.C https://hcservices.ecourts.gov.in/hcservices/ for recalling PW-1 to cross-examine him relating to those documentsregarding the production of which petitions under Section 91 of theCr.P.C were filed; that such petitions were filed separately in allthe above said STCs; that the learned XII Judge, Small Causes Court(Special Magistrate) dismissed all those petitions, pursuant to whichthe petitioner in all the criminal Ops/accused in all the above saidSTCs filed copy applications to get certified copies of the ordersfor filing necessary revision before the High Court; that the learnedXII Judge of Small Causes Court(Special Magistrate), who initiallyadjourned the case to a couple of hearings so as to enable thepetitioner/accused to get the certified copies and file necessaryrevision before the High Court, at last refused to grant any moreadjournment and dismissed the petitions filed by him in all the abovesaid STCs on 17.06.2009; that before dismissing the said petitionsfiled under Section 309 Cr.P.C, the trial judge openly declared herintention to convict the petitioner/accused and that hence thepetitioner/accused was constrained to approach this court statingthat he lost his faith in the trial court.3. The learned counsel for the petitioner argued that thereasonable request made on behalf of the petitioner/accused to grantadjournment so as to enable him to file revisions before the HighCourt against the orders passed in the petitions filed under Section91 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 declaredin the open court that the accused would be punished and he couldfile appeals against his conviction and that the same would revealthe fact that the trial judge has already made up her mind to convictthe petitioner/accused.4. On the other hand, Mr.T.Ashok Kumar, learned counsel for therespondent/complainant in all these petitions would contend that thepresent petitions are the continuation of the efforts made by thepetitioner/accused person to stall the proceedings and drag on thecase as long as possible and that when his attempt to drag on theproceedings was sought to be thwarted, the petitioner has comeforward with these petitions vexatiously for the transfer of thecases. The learned counsel for the respondent also drew theattention of the court to the fact that all these cases had beenoriginally pending on the file of the VII Metropolitan Magistrate,Chennai and the same were withdrawn from the file of the said courtand transferred to the file of the XII Judge, Small Causes Court(Special Magistrate) by an order of this court dated 26.10.2007 madein Crl.O.P.Nos.28860 to 28863/2007; that the said transfer order wasmade at the instance of the petitioner herein/accused; thatsubsequent to the said order of transfer, the case resulted in theconviction of the petitioner herein/accused in all the above saidSTCs by judgment dated 03.03.2008; that thereafter the petitionerherein/accused preferred appeals in C.A.Nos.128/2008 to 131/2008 on https://hcservices.ecourts.gov.in/hcservices/ the file of the Sessions Court which came to be disposed of by thelearned VI Additional Sessions Judge, Chennai by setting aside theconviction and remanding the STCs back to the trial court, namely thecourt of the XII Small Causes Judge (Special Magistrate) withdetailed directions regarding what are to be done and what should notbe done; that the lower appellate court in the said order of remandalso directed the trial judge to complete the proceedings and disposeof the case within two months from the date of receipt of the orderof the appellate court along with case records; that there after, thepetitioner herein/accused, acting against the spirit of the directionfound in the remand order, had chosen to file petitions under Section91 Cr.P.C for direction to the complainants to produce certaindocuments and petitions under Section 311 Cr.P.C for recalling PW-1;that the trial judge rightly dismissed both those petitions; thatthere after the petitioner/accused in the guise of filing revisionsagainst the said orders were simply protracting the case which madethe trial court to dismiss the petition filed under Section 309Cr.P.C on 17.06.2009, after allowing such petitions on previousoccasions and that the court below rightly closed the defenceevidence because of the consistent refusal to produce further defencewitnesses. It is the further contention of the learned counsel forthe respondent/complainant that the present petitions are alsointended to protract the case as long as possible and that hence thepetitions seeking transfer of the cases should be dismissed. 5. This court carefully considered the submissions made oneither side and also perused the materials available on recordincluding the petition, affidavits and documents produced in the formof typed set of papers and also the remarks received from the trialcourt.6. The petitioner herein in all these criminal originalpetitions figures as accused in S.T.C.Nos.2865, 2867, 2866 and2868/2007 presently pending on the file of the learned XII Judge,Court of Small Causes, Chennai (Special Magistrate). All the fourSTCs were cases instituted by the respondents herein on privatecomplaints for an offence punishable under Section 138 of theNegotiable Instruments Act, 1881 based on four dishonoured chequesissued by the petitioner herein in favour of the respondents. Thecases were originally instituted on the file of the VIII MetropolitanMagistrate, Chennai and they were taken on the file of the said courtas C.C.Nos.2364/2005, 2365/2005, 2368/2005 and 2369/2005. 7. Alleging that the respondent herein/complainant was moreinfluential in wielding money and political power and that thepetitioner was having a reasonable apprehension that he might not geta fair justice if the same was tried by the learned VIII MetropolitanMagistrate, the petitioner herein preferred four criminal OPs inCrl.O.P.Nos.28860 to 28863/2007 for the transfer of those cases from https://hcservices.ecourts.gov.in/hcservices/ the file of the VIII Metropolitan Magistrate to any other court. Theabove said criminal OPs filed by the petitioner in all the fourcriminal cases instituted against him by the respondents were allowedand the above said criminal cases were withdrawn from the file of thelearned VIII Metropolitan Magistrate and transferred to the file ofthe learned XII Judge, Small Causes Court (Special Magistrate),Chennai. It is pertinent to note that previous to the above said order oftransfer, Sreeja Ravi, the complainant in C.C.No.2368/2005 nowS.T.C.No.2368/2007 filed a criminal OP under Section 482 Cr.P.Cnamely, Crl.O.P.No.21263/2007 seeking a direction to the learned VIIIMetropolitan Magistrate, George Town, Chennai to complete the trialof the said case within a time to be fixed by this court. Thiscourt, by an order dated 18.07.2007 directed the learned VIIIMetropolitan Magistrate, George Town, Chennai to expedite the trialand dispose of the case within two months from the date of receipt ofthat order. Thereafter, the petitioner approached this court by wayof Crl.O.P.Nos.28860 to 28863/2007 for transferring the cases, inwhich this court passed an order dated 26.10.2007 transferring thesaid cases to the file of the XII Judge, Small Causes Court (SpecialMagistrate). This court, by the said order of transfer also directedthe judge of the transferee court, namely XII Judge, Small CausesCourt, Chennai (Special Magistrate) to dispose of those cases withintwo months from the date of receipt of the records from the VIIIMetropolitan Magistrate, George Town, Chennai. It seems on transferto the court of XII Judge, Small Causes Court, Chennai, the caseswere renumbered as STC Nos.2865 to 2868/2007. 8. After examining the witnesses on the side of the complainantand the witnesses produced on the side of the accused, the learnedXII Judge, Small Causes Court, Chennai convicted the petitioner inall those cases for offences under Section 138 of the NegotiableInstruments Act by judgments dated 03.03.2008. The said convictionswere set aside by the learned VI Additional Sessions Judge, Chennaiby judgments dated 02.02.2009 made in C.A.Nos.128 to 131/2008.Besides setting aside the conviction, the learned lower appellatejudge chose to remand those cases to the trial court for freshdisposal giving specific directions as to what are all theopportunities to be given to the accused persons and thecomplainants. 9. In the lower appellate court, the petitioner herein (accused)had given a list of witnesses, who were sought to be examined on hisside and a list of documents sought to be produced on the side of theaccused. Eight persons were shown to be the witnesses, who weresought to be examined on the side of the accused after remand. Theywere 1) Sonukumar, 2) S.Ramachandran, 3) Rashik Lal, 4) Sajid, 5)Bindu, 6) Madan Mohan, 7) K.Ravi and 8) Vijay Dhandapani (petitioner https://hcservices.ecourts.gov.in/hcservices/ herein/accused). The documents which were sought to be produced were1) bank statements of the complainant and power of attorney for theyears 2000-2005, 2) copy of the complaint filed by the respondentunder Section 200 Cr.P.C before the Hon'ble XI MetropolitanMagistrate, Saidapet on 12.04.2004 in Crl.M.P.No.1141/2004 along withdocuments and 3) copy of the reply notice dated 15.05.2004. In factwhen the petitioner/accused approached this High Court for transferof the cases from the VIII Metropolitan Magistrate to any othercourt, the respondents did not raise any serious objection and thesame will show their endeavour to see that dilatory tactics adoptedby the petitioner/accused was put to an end. Thereafter, even in theappeals before the lower appellate courts, therespondents/complainants did not raise any serious objection forgiving an opportunity to examine the persons desired by thepetitioner herein/accused as witnesses before the trial court. Inview of the same, the lower appellate court, after setting aside theconviction remanded the STCs for fresh disposal with the followingdirections:-(1) The appellant/accused is permitted to examine allthe witnesses mentioned above except the witnesses No.3 to5 who have already been examined as defence witnessesincluding himself by filing the petition under section 315Cr.P.C. If already has not been filed and no further listof defence witnesses shall be allowed by the trial court atany costs.(2) The trial court shall examine all the remainingdefence witnesses within the period of two months from thedate of receipt of this order along with the case recordsby directing the appellant/accused to produce the witnessesthen and there for the hearing fixed by the trial court andsuch hearings shall not extend beyond 10 days for eachhearing and should examine minimum two witnesses for eachhearing by giving preference to this case as a special onebeing the remanded one.(3) The petitioner/accused is directed to produce allthe defence witnesses to be examined except those who werealready examined before the court by himself voluntarilywith or without summons and for the purpose of summons heis permitted to avail by taking private summons, hand overthe summons etc in order to avoid the delay in examiningthe defence witnesses.(4) The relevant documents to be relied upon by theappellant/accused shall be marked only through thewitnesses already mentioned in the list who were notexamined earlier and through the accused himself before the https://hcservices.ecourts.gov.in/hcservices/ trial court and without seeking any more directions fromthe trial court in this regard.(5) The complainant/respondent is permitted to recallthe witnesses already examined in view of the additionalwitnesses examined by the defence and the additionaldocuments marked if necessary by recalling P.W.1 and otherwitnesses by taking necessary steps under the relevantprovisions of law and for the same the trial court has topermit the same. Regarding the document No.1 Bankstatements of complainant/power of attorney for the years2000-2005 to be produced only if they are relevant for thecase which could be decided by the trial judge.(6) The trial court shall not permit any additionallist of witnesses or documents other than one furnishedbefore the appellate court as mentioned in this order bythe appellant/accused.(7) The trial court is directed to proceed with thecase from the stage of continuation of defence withessesand to dispose of the case according to law within threemonths from the date of receipt of records from this courtand the compliance report is to be submitted in this regardto this court.(8) The parties are directed to appear before thelearned XII Judge, Small Causes Court, Chennai on23.02.2009 to proceed further in this regard.The petitioner did not bring it to the notice of the lower appellatecourt at the time of disposal of the said criminal appeals that thedocuments sought to be produced on his side as defence documents werenot available with him and that he intended to file a petition underSection 91 Cr.P.C seeking a direction to the respondents/complainantsto produce those documents. Had it been made known to the learnedlower appellate judge, the lower appellate judge would haveincorporated the clear directions regarding the same. As thosedocuments are documents produced in a court of law in a differentproceedings, certified copies of the same could have which wouldhave been obtained by the petitioner himself. Instead of doing it,and without revealing his intention to seek a direction against thecomplainants to produce those documents, the petitioner/accused hadobtained orders of remand remitting the cases back to the trial courtfor fresh disposal. The lower appellate court had issued cleardirections to the effect that the accused should produce all thedefence witnesses except those who were already examined before thecourt with or without summons. The accused was also permitted toavail the benefit of taking private summons or hand over summons in https://hcservices.ecourts.gov.in/hcservices/ order to avoid delay in summoning and examination of the defencewitnesses. It was also made clear that relevant documents to berelied on by the accused should be marked through the witnesses whowere not examined earlier and whose names were found in the listproduced before the lower appellate court without seeking any moredirection from the trial court in that regard. Despite such clearand elaborate directions, the petitioner/accused seems to have filedpetitions to direct the respondent/accused to produce thosedocuments, which the petitioner/accused wants to rely on as defencedocuments. The lower appellate court had given permission to therespondent herein/complainant to recall PW-1 and other witnesses, ifnecessary in view of the evidence to be adduced through theadditional witnesses to be examined on the side of the petitionerherein/accused. However, the petitioner herein/accused has chosen tofile a petition to recall PW-1 without producing the witnesses to beexamined on his side and without producing the documents sought to berelied on by him. Even regarding the first set of documents, namelybank statements and power of attorneys for the years 2000 - 2005, thelower appellate court has directed that the relevency of the sameshould be decided by the trial court. Despite the fact that suchdetailed directions have been given by the lower appellate courtwhile remanding the cases to the trial court, the petitioner seems tohave devised ingenious method by filing petitions under Section 91Cr.P.C and Section 311 Cr.P.C seeking directions to the complainantto produce the documents which were sought to be relied on by theaccused and to recall PW-1 in all those cases respectively with aview to drag on the case as long as possible. 10. The learned counsel for the respondent has rightly contendedthat the intention of the petitioner is to frustrate the complainantsthereby coerce them to come to terms with him. From the report ofthe trial court, it is quite obvious that despite the fact that therehad been two directions from the High court and one direction fromthe lower appellate court to dispose of the case within two months,the trial judge granted time liberally and adjourned the matter evenat the risk of being called upon to explain why the case was notdisposed of within the time granted by the appellate court and theHigh court; that the petitioner had shown his reluctance to proceedwith the cases and that ultimately, the trial court has chosen toclose the defence evidence and post the matters for arguments. Atthat stage alone, the petitioner has come forward with the presentpetitions seeking transfer of the case from the present trial courtto any other court on unacceptable and untenable allegations.11. This court is satisfied that the present petitions arenothing but an attempt to drag on the case. The apprehensionexpressed by the petitioner is not reasonable. Hence, this courtcomes to the conclusion that there is no merit in these criminaloriginal petitions and they deserve to be dismissed. Accordingly all https://hcservices.ecourts.gov.in/hcservices/ the four criminal original petitions Crl.O.P.Nos.12242 to 12245 of2009 are dismissed. Consequently connected MPs in all the OPs areclosed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar asrToXII Judge, Small Causes Court, Chennai (Special Magistrate)4 cc To Mr.S.Rayhan, Advocate, SR.35484Crl.O.P.Nos.12242 to 12245/2009ms(co)pmk.20.8.2009