CRLRC/2434/2012 of Mogilicherla Sudarshan, Vs The State of Andhra Pradesh, on 28 December 2012

Facts

JUDGMENT:-

This revision is directed against the order passed inCrl.M.P.No.357 of 2012 in C.C.No.391 of 2012 on the file of XXVSpecial Magistrate, Hyderabad, whereby and whereunder, the learnedMagistrate allowed the application filed by the 2[nd]respondent/complainant under section 254 (2) of Cr.P.C. and receivedthe promissory note dt. 12-7-2009 stated to have been executed by theaccused.

Facts in brief are; The 2[nd] respondent presented a complaint inthe court of XI Additional Chief Metropolitan Magistrate,Secunderabad, alleging inter-alia that the petitioner/accusedborrowed an amount of Rs.5,00,000/- on 12-7-2009 as hand loan forthe purpose of payment of his son’s fee in Dental Medical College,Nizamabad and that subsequently, the petitioner issued a chequebearing No.445571, dt. 20-12-2010, for Rs.5,00,000/- drawn on Bankof Rajastan Limited, Warangal Branch towards discharge of handloan. He presented the cheque and the same came to be dishonouredon the ground of in-sufficient funds. He issued statutory notice on 24-02-2011, calling upon the petitioner/accused to pay the amountcovered under the cheque in question. There being no payment, thepetitioner/accused is liable for punishment for the offence undersection 138 of the Negotiable Instrument Act. Along with thecomplaint, he filed the following documents.

1. Original cheque bearing No.445571 for Rs.5,00,000/- ,dt. 20-12-2010, drawn on The Bank of Rajastan Limited,Warangal Branch,dt. 20-12-2010, drawn on The Bank of Rajastan Limited,Warangal Branch,

2. Original receipt dt. 3-2-2011 issued by the ING VysyaBank, Bowenpally Branch, Secunderabad,Bank, Bowenpally Branch, Secunderabad,

3. Original Cheque return memo issued by the AccusedBanker ie. ICICI Bank on behalf of Rajastan BankLimited, dt. 4-2-2011Banker ie. ICICI Bank on behalf of Rajastan BankLimited, dt. 4-2-2011

4. Original Cheque return memo issued by the complainantbanker ie. ING Vysya Bank, Bowenpally Branch,Secunderabad, dt. 4-2-2011banker ie. ING Vysya Bank, Bowenpally Branch,Secunderabad, dt. 4-2-2011

5. Bank statement issued by complainant bank

6. Office copy of legal notice dt. 24-2-2011

7. Original postal receipt dt. 25-2-2011

8. Original postal acknowledgment card dt. 3-3-2011

9. Original reply cover with plain paper from the accuseddt. 1-4-2011dt. 1-4-2011

10. Original complaint dt. 6-4-2011 in P.S. Vanastalipuram Learned XI Addl. Chief Metropolitan Magistrate, Secunderabad,took the complaint on file as C.C.No.572 of 2011. Subsequently thecase came to be transferred to the file of XXV Special Magistrate,Hyderabad and renumbered as C.C.No.391 of 2012. The 2[nd]respondent/complainant filed petition under section 254 (2) of Cr.P.C.to receive and mark the promissory note executed by thepetitioner/accused. The accused filed counter resisting theapplication. The learned Magistrate allowed the application by orderdated 7-8-2012. The said order came to be assailed by thepetitioner/accused by filing Crl.R.C.1942 of 2012. This court by orderdated 12-10-2012 allowed the revision case and remanded the matterto the trial court to pass orders afresh on recording reasons. Thelearned XXV Special Magistrate, Hyderabad, on considering thematerial brought on record and on hearing the counsel appearing forthe parties, proceeded to allow the petition. The relevant portion of theorder reads as under:

“The complainant traces the horizon of the debt/loanobtained by the accused from him, to the promissory note dt.12-7-2009 said to have been executed by the accused. Thus, the said promissory note is a prime document to clinchthe issue whether it is a forged one or not has to be decidedin the trial. Keeping this aspect in view, this court by orderdated 7-8-2012 permitted to receive the document onlysubject to proof and relevancy. Mere belated production ofthe document cannot suffer the complainant to have

Arguments

opportunity of rebutting the version of accused. If theaccused is desirous of disproving the case of thecomplainant, it is open for him to do it by way of crossexamination or producing clinching evidence.

Therefore, the promissory note can be permitted to bereceived subject to proof and relevancy. Therefore, thepromissory note dated 12-7-2009 filed by the complainant isreceived subject to proof and relevancy. Accordingly, thispetition is disposed of.”

The said order is assailed in this revision.

Heard learned counsel appearing for the petitioner/accused andlearned counsel appearing for the second respondent/ complainant.

It is contended by learned counsel appearing for thepetitioner/accused that the 2[nd] respondent/complainant did not makeany reference of the pronote dt. 12-7-2009 in the complaint andtherefore, it is impermissible for him to rely on the pronote, which hasno reference in the complaint. Learned counsel took me to theaverments of the complaint and also statutory notice issued by the 2[nd]respondent/complainant in support his contention Learned counsel appearing for the 2[nd] respondent/complainant submits that the origin of the debt can be known by referring therecitals in the promissory note dated 12-7-2009 and the cheque cameto be issued towards discharge of the liability covered under thepromissory note and therefore, the promissory note is essentialdocument to come to a just conclusion and as the trial court receivedthe document by assigning valid, cogent and convincing reasons andthe order of the trial court does not call for interference of this court inexercise of powers under sections 397 and 401 of Cr.P.C. In supportof his contention, reliance has been placed on the Judgment ofSupreme Court in P.CHHAGANLAL DAGA VS M.SANJAY SHAW(2003) 11 SCC 486.[[1]]

Much emphasis has been laid by the learned counsel at Para 6of the cited judgment and it is thus:

“In deciding so, this court has taken into account some of the earlier decision of this court including MohanalShamji Son Vs. Union of India (1991) Sppl.1 SCC 271. Inthe said decision this court had observed that the power toreceive evidence in exercise of Section 311 of the Codecould be exercised “even if evidence on both sides isclosed” and such jurisdiction of the court is dictated by theexigency of the situation and fair play. The only factorwhich should govern the court in exercise of powers underSection 311 should be whether such material is essentialfor the just decision of the case. Even a reading of Section311 of the Code would show the Parliament has studdedthe said provision lavishly with the word “any” at differentplaces. This would also indicate the widest range of powerconferred on the court in that matter. It is so stated by thiscourt in Ramchander Vs. State of Haryana.

I have given my anxious consideration to the contentionsadvanced by learned counsel appearing for the parties. It is trite torefer Para No.1 of the complaint filed by the 2[nd] respondent/complainant. It is thus:-

“That the accused known to the complainant, due tothe said relationship with the complainant, the accusedapproached the complainant on 12-7-2009 and borrowed asum of Rs.5,00,000/- as hand loan, for the purpose ofpayment accused son’s Dental Medical College Fees, BDSin Nizamabad Dental College, and agreed to pay back theborrowed amount to complainant within one year, and thecomplainant approached after one year to the accused forrepayment of borrowed amount, for which the accusedrequested further time, and finally the complainant in themonth of December, 2010 demanded the repayment ofborrowed amount, for which the accused issued chequebearing No. 445571, dt. 20-12-2010 for Rs.5,00,000/- drawnon Bank of Rajastan Limited, Warangal Branch andrequested to present the same first week of February, 2011. That the complainant on good faith accepted the same.”

It is also trite to refer the legal notice issued by the 2[nd]respondent/complainant. Para No.1 of the legal notice reads ashereunder:

“That you are known to my client from several yearsand with the said relationship on 12-7-2009 you haveapproached my client and borrowed a sum of Rs.5,00,000/-as hand loan, for the purpose of payment of your son’scollege fees, BDS in Nizamabad Dental College, andagreed to pay back the borrowed amount to my client withinone year. That after completion of one year my clientapproached in the December, 2010 and demanded therepayment of borrowed amount, for which you have issueda cheque bearing No.445571, dated 20-12-2010 forRs.5,00,000/- drawn on the Bank of Rajastan Limited,Warangal Branch, and requested to present the same firstweek of February, 2011.”

A reading of the complaint as well as the legal notice does notindicate that the petitioner/accused executed a promissory note on 12-7-2009 or issued the cheque dated 20-12-2010 towards discharge hisliability under the pronote dated 12-07-2009. The document whichhas no reference in the complaint, the 2[nd] respondent/complainantcannot be permitted to place on record. Even the proposed documentis contra to the averments in the legal notice as well as the complaint. The trial court has thoroughly misread the material brought on recordand thereby erred in allowing the application filed by the 2[nd]respondent/complainant under section 254 (2) of Cr.P.C.

Accordingly, the Criminal Revision Case is allowed by settingaside the order passed in Crl.M.P.No.357 of 2012 on the file of XXVSpecial Magistrate, Hyderabad and consequently Crl.M.P.No.357 of2012 shall stand dismissed.

As sequel to it, Misc. Petitions, pending if any, shall standdismissed.

28[th] December, 2012

_________________________

B.Seshasayana Reddy, J

gkv

[1](2003) 11 SCC 486