Ramesh v. M. Mahendran

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED 17.04.2012CORAMTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYCrl.R.C.(MD) No.439 of 2011 Ramesh ..Petitioner/Accused Vs.M.Mahendran..Respondent/ComplainantPRAYER: Criminal Revision Case is filed under Sections 397 r/w 401of the Criminal Procedure Code, to allow this revision petition andset aside the order passed in Crl.M.P.No.1894 of 2008 on the file ofthe learned Judicial Magistrate No.III, Madurai dated 15.12.2010. For Petitioner : Mr.Siva Ayyappan For Respondent : Ms.P.Krishnaveni for Mr.A.Hajamohideen***

O R D E RThis Criminal Revision Petition has been filed by thepetitioner/accused against the order passed in Crl.M.P.No.1894 of2008 on the file of the learned Judicial Magistrate No.III, Maduraidated 15.12.2010.

The background of the case is that the accused has borrowed asum of Rs.50,000/-(Rupees Fifty Thousand only) for interest at therate of 15% per annum from the respondent/complainant and he issueda cheque on 12.06.2003 for the value of Rs.50,000/-(Rupees FiftyThousand only). When it was presented on that day, it has beenreturned from the Bank on 13.06.2003 for “insufficient funds”.Thereafter, the respondent/complainant issued a statutory notice tothe accused. There was no reply from the petitioner/accused. Hence, the respondent/complainant presented a complaint before thelearned Judicial Magistrate NO.III, Madurai and the learnedMagistrate has also taken cognizance of the offence under Section138 of Negotiable Instruments Act and issued summons to thepetitioner/accused and the trial was also proceeded.

At the time of examination of P.W.2-the Bank Manager, in hisevidence, he stated that the cheque was standing in the name of thebrother of the accused. Thereafter, the complainant has filed apetition in Crl.M.P.No.1894 of 2004 before the learned Magistratefor altering the charges under Section 419 and 420 I.P.C. instead of Section 138 of Negotiable Instruments Act. The learned JudicialMagistrate has dismissed the said petition vide order dated06.09.2008.

Against the said order, the respondent/complainant haspreferred a Criminal Revision Petition by way of Crl.R.C.(MD)No.893of 2008. This Court, by its order dated 24.11.2009, has set asidethe order passed by the learned Judicial Magistrate passed in https://hcservices.ecourts.gov.in/hcservices/ 2Cr.M.P.No.1894 of 2008 and directed the learned Judicial Magistrateto proceed with the case in accordance with law.

After receipt of the order dated 24.11.2009, the learnedJudicial Magistrate has passed an order by allowing the applicationin Cr.M.P.No.1894 of 2011 by converting the charges into warrantprocedures. Against which, the present Criminal Revision Petitionhas been filed by the petitioner/accused.

The vehement contention of the learned Counsel appearing forthe petitioner/accused is that after passing an order by this Court, the learned Judicial Magistrate ought to have dismissed theapplication and he cannot alter the charges as per the judgmentreferred by this Court as well as the Honourable Apex Court, whichis contrary to law. He further contended that the observations madeby the learned Judicial Magistrate are also prejudicial to theaccused. Hence, he prayed that this Criminal Revision Petition hasto be allowed.

The learned Counsel appearing for the respondent/complainantcontended that after passing an order by this Court, the right leftopen to the petitioner/accused is before the Honourable Apex Courtand not before this Court by way of filing another Criminal RevisionPetition. This way of filing another Criminal Revision Petitionbefore this Court is against the law, which amounts to contempt of Court. Hence, he prayed that this Criminal Revision Petition has tobe dismissed in limine.

Heard the learned Counsel for both sides and perused theconnected materials available on record.

It is not in dispute that the respondent/complainant hasfiled a petition before the learned Judicial Magistrate for alteringthe charges in Cr.M.P.No.1894 of 2008 and the same was dismissed, against which the Criminal Revision Petition in Crl.R.C.(MD)No.893of 2008 has been filed by the respondent/complainant and in thatrevision petition, this Court has set aside the earlier order of thelearned Judicial Magistrate dated 06.09.2008.

The only vehement contention of the learned Counsel for thepetitioner/accused is that since this Court has passed an orderdated 24.11.2009 and directed the learned Judicial Magistrate todispose of the matter in accordance with law, it will not mean thatthe Court directed the learned Magistrate to allow the petition. Hence, he prayed that this Criminal Revision Petition has to beallowed.

From the perusal of the order, it is seen in paragraph 2 ofthe order that the complainant has filed a petition at the earliestpoint of time for altering the charges under Section 216 Cr.P.C. andto include Sections 417, 419 and 420 I.P.C. and the applicationfiled by the complainant before the trial Court was dismissed. These observations have been found a place in paragraph No.2 of theorder passed in Crl.R.C.(MD)No.893 of 2008 and in paragraph No.8also, it runs as follows:

Accordingly, the order of the Judicial Magistrate No.III,Madurai dated 06.09.2008, in Cr.M.P.No.1894 of 2008 inS.T.C.No.360 of 2004 is set aside and the matter isremitted to the Judicial Magistrate No.III, Madurai and heshall dispose of the same in accordance with law.

https://hcservices.ecourts.gov.in/hcservices/

Therefore, from this, it is very clear that the earlierorder passed by the learned Judicial Magistrate has been set asideand this Court could have added by saying that after framing of thecharges, the learned Judicial Magistrate could proceed with thetrial, because of the word is not there, the learned Counsel for thepetitioner/accused has preferred the present Criminal RevisionPetition by giving burden to this Court.13. Therefore, this Court is not inclined to interfere with theorder of the learned Judicial Magistrate except the trial verdict ofthe Court. In the contention made by the learned Counsel for thepetitioner/accused, it is submitted that some of the observationsmade by the learned Judicial Magistrate are prejudicial to the caseof the accused. In the said observations made by the learnedJudicial Magistrate, he has not given any finding in that regard, while discussing the facts. He has made certain observations whichare not certainly prejudiced to the accused and the learned JudicialMagistrate also will not bear in mind about the observations madehim and by this Court at the time of disposal of the case.14. From the perusal of the records, only this Court wants torecord that as per the evidence of P.W.2, it is pertinent to notethat during the chief examination itself, he has admitted that thecheque belongs to some other party(brother of the accused) and thereis no pleadings for inclusion of Section 417 and 420 I.P.C. alsoavailable in the complaint to be seen and borne in mind by thelearned Judicial Magistrate. Here, it is very clear that thecomplainant cannot be allowed to make any amendment in thisapplication and it is to be proceeded with to avoid the anotherround of litigation, where the matter is left from that point andthe learned Judicial Magistrate is directed to dispose of the matterwithin a period of three months from the date of receipt of a copyof this order.15. With the above observations, this Criminal Original Petitionis disposed of. Sd/- Assistant Registrar(A&E) /True Copy/ Sub Assistant Registrar ToThe Judicial Magistrate No.III, Madurai Crl.R.C.(MD) No.439 of 201117.04.2012sslPBK : 16.05.2012 ::3P-2C::