S. Raman v. Sri Rajalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.09.2018
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl.O.P.(MD)No.3663 of 2016 and Crl.M.P.(MD)No.1852 of 2016 S.Raman :Petitioner/Petitioner/Complainant Vs.
Sri Rajalingam :Respondent/Respondent/Respondent PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records relating to the order dated 03.02.2016 passed by the learned Judicial Magistrate, Vallioor, Tirunelveli District in Crl.M.P.No.518 of 2016 in C.C.No.394 of 2013, set aside the same and allow the petition filed by the petitioner before the lower Court.
For Petitioner : Mr.R.Anand For Respondent : Mr.K.Rajeshwaran
ORDER
This Criminal Original Petition has been filed challenging the order of the Court below dismissing the petition filed under Section 91 Cr.P.C r/w311 Cr.P.C.
2.The petitioner is the complainant, who has filed a petition to summon the General Manager of Tirunelveli District Cental CoOperative Bank and also the President of the Primary Agricultural Co-Operative Credit Society.
3.The Court below dismissed the petition on the ground that already the Secretary of the Radhapuram Primary Agricultural CoOperative Bank was examined as P.W.2 and he has stated in his evidence that the instrument in question was not given by the said Bank. Similarly P.W.3, who is the Branch Manager of the Indian Overseas Bank, Vallioor has stated that only serial number of the instrument has been mentioned and there is no reference to a word cheque in the instrument. Similarly, the Branch Manager of the Indian Overseas Bank, Radhapuram has also deposed the same fact. 4.The learned counsel appearing for the petitioner would
submit that the moot question that arose for consideration before the Court below is as to whether the negotiable instrument in question is a cheque or not. The burden of proof is only on the petitioner to prove the same. Therefore, the petitioner has to take necessary steps in order to establish the fact that the negotiable instrument is a cheque.
5.Per contra, the learned counsel appearing for the respondent would submit that the petitioner has already examined five witnesses in this case and it is very clear from their evidence that the negotiable instrument in question is not a cheque and the same was not issued by the Radhapuram Primary Agricultural CoOperative Bank. He further submitted that if negotiable instrument is not a cheque, then the signature found in it was not the authorised signature, since the issue itself will not be covered under Section 138 Negotiable Instrument Act. He further submitted that the petitioner is fishing for evidence and he is examining one witness after another continuously, to drag on the proceedings.
6.This Court has carefully considered the arguments made on either side.
7.The respondent has come out with the defence that the instrument in question is not a cheque and the signature found in the cheque is not a signature of the respondent. The respondent in order to probabilise his defence, relies upon the very evidence given on the side of the complainant. By doing so, the respondent has shifted the burden to the complainant to prove the case. 8.Now the petitioner/complainant wants to establish the fact that the instrument in question is a cheque. For this purpose, earlier the Secretary of the Primary Agricultural Co-Operative Bank was examined and he had stated that this instrument was not given by the said Bank. Therefore, no useful purpose will be served by examining the President of the Primary Agricultural CoOperative Bank. Because any contradiction in their evidence will be no avail in order to find out the real nature of the instrument.
9.In the same way, it is not necessary for the petitioner to get into the issue of handwriting of the respondent, since the respondent had already taken steps in that regard during the course of proceedings. The only person, who can speak about the nature of negotiable instrument is the Official belonging to the Bank, who is well-versed in the respective field. Therefore, this Court is of the view that one more opportunity can be given to the petitioner to examine the General Manager of the Tirunelveli District Cental Co-Operative Bank, Vannarapettai, Tirunelveli. 10.The Radhapuram Primary Co-Operative Bank comes directly
within the purview of the said Central Co-Operative Bank. Therefore, the Official from the Central Co-Operative Bank will be in a position to clarify as to the nature of the negotiable instrument which is the subject matter of this case. 11.In the result, this Criminal Original Petition is allowed and the order of the Court below is modified to the effect that the petitioner shall be permitted to examine the General Manager of the Tirunelveli District Central Co-Operative Bank, only for the purpose of establishing the nature of the negotiable instrument. The petitioner will not be permitted to re-open any other issues that have already came on record by examining other witnesses.
12.The Court below is directed to summon the General Manager of Tirunelveli District Central Co-Operative Bank, Vannarapettai, Tirunelveli and on the date of his appearance, the petitioner is directed to complete the examination and it is left open to the respondent to cross-examine the said witness. The entire evidence must be completed on the same day on which the Official is to be summoned before the Court below.
13.The learned Judicial Magistrate, Vallioor is also directed to dispose of the case in C.C.No.394 of 2013, within one month from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar (Crl.side) /True Copy/ Sub Assistant Registrar (CS-I) To The Judicial Magistrate, Vallioor, Tirunelveli District.
+ 1 CC TO Mr.K.RAJESHWARAN, ADVOCATE IN SR No. 81999 GNS TE/PM/SAR-1 : 29/10/2018 : 3P/3C Crl.O.P.(MD)No.3663 of 2016 03.09.2018