IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON’BLE MR.JUSTICE T.SUDANTHIRAM
CRL.O.P.No.21026 of 2010
M.P.Nos.1 of 2010 and 1 of 2011
R.Dhanasekaran .. Petitioner/Accused
.. Vs ..
N.Dhakshinamoorthy .. Respondent/complainant
Prayer:- Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the records pertaining to Crl.M.P.No.7832 of 2009 in C.C.No.234 of 2008 on the file of the learned Judicial Magistrate, Tambaram, and to set aside the order dated 19.08.2010 passed in Crl.M.P.No.7832 of 2009 in C.C.No.234 of 2008 by the learned Judicial Magistrate, Tambaram.
For Petitioner : Mr.S.Balasubramanian
For Respondent : Mr.J.P.Sekar
– – – – –
The petitioner herein is the accused in C.C.No.234 of 2008 on the file of the learned Judicial Magistrate, Tambaram. The respondent herein is the complainant, who filed a case against the petitioner for an alleged offence under Section 138 of the Negotiable Instruments Act. The respondent herein also has filed an application under Section 91 of Cr.P.C., before the trial Court seeking a direction from the learned Magistrate to the accused to produce the undertaking letter dated 27.12.2007 given by the accused to the complainant accepting the financial liability and also about issuance of cheques. The said application was allowed by the learned Magistrate directing the accused to produce the document dated 27.12.2007 and also permitting the complainant to mark the copy of the said document, in case of failure on the part of the accused to produce the said document. Challenging the said order, the accused/petitioner herein had preferred this criminal original petition before this Court.
2. Learned counsel for the petitioner submits that the accused cannot be compelled to produce any document to be evidenced against him, which is violative of Article 20(3) of the Constitution of India. The learned counsel for the petitioner has also relied on a decision of this Court reported in 1997 (III) CTC 196 (K.Senthamarai and another Vs. State by Inspector of Police) and submitted that Section 91 Cr.P.C., cannot be exercised against the accused. It is further submitted by the learned counsel for the petitioner that the respondent/complainant has not mentioned in his application before the trial Court under whose possession the original document is available. The learned counsel for the petitioner also pointed out that even assuming for a moment, a letter was given by the accused to the complainant accepting the liability, such letter could be only in the possession of complainant.
3. Learned counsel for the respondent submitted that a Xerox copy of the letter dated 27.12.2007 is available with the complainant and it is signed by both complainant and the accused. The accused had admitted his liability and also mentioned about the issuance of cheques towards the liability.
4. This Court has considered the submissions made by the learned counsel on either side and perused the records.
5. An application has been filed by the complainant under Section 91 Cr.P.C., for production of letter dated 27.12.2007 by the accused. It is observed by the Hon’ble Supreme Court in a decision reported in A.I.R. 1965 Supreme Court 1251 (State of Gujarat Vs. Shyamlal) in paragraph No.33 as follows:-
“33. Keeping the above considerations in mind, let us look at the terms of the section. It will be noticed that the language is general, and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words ‘attend and produce’ are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court ‘to attend and produce’ a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to ‘attend and produce’ a document.”
6. Relying on the decision referred to above, this Hon’ble High Court has held in the decision reported in 1997 (III) CTC 196 (K.Senthamarai and another Vs. State by Inspector of Police) in paragraph No.17 as follows:-
“17. In the light of the discussion made in the above paragraphs (33) and (36), the Apex Court held that Section 94 (presently 91) Cr.P.C., on its true construction, does not apply to an accused person. These decisions would make it clear that the order of the Magistrate issuing summons to the accused to produce documents which are not only incriminating but also likely to be incriminatory is illegal.”
7. This principle also has been followed by the Madurai Bench of this Court in a decision reported in (2008) 2 MLJ (Crl.) 394 (H.Mohamed Ibrahim Kaleel and others Vs. State, by the Inspector of Police), wherein, it is observed as follows:-
“24. From the close reading of the decisions referred to earlier, it is needless to say that the power enshrined in Section 91(1) of the said Code cannot be invoked against any accused.”
8. Therefore, it is well settled principle of law that a summons to produce a thing or document as contemplated under Section 91(1) Cr.P.C., cannot be issued to a person accused of an offence calling upon him to produce document or thing in order to mark it as evidence against the accused. In the said circumstances, the order passed by the learned Magistrate directing the accused to produce the document dated 27.12.2007 is against law.
9. Furthermore, the observation passed by the learned Magistrate that in case of failure by the accused to produce the document, the complainant is permitted to mark the Xerox copy of the document is also against law.
10. Section 65 of the Indian Evidence Act reads as follows:-
“65. Cases in which secondary evidence relating to documents may be given. – Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power –
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court,
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”
11. Section 66 of the Indian Evidence Act reads as follows:-
“66. Rules as to notice to produce.- Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-
(1) When the document to be proved is itself a notice;
(2) When, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) When the adverse party or his agent has the original in Court;
(5) When the adverse party or his agent has admitted the loss of the document;
(6) When the person in possession of the document is out of reach of, or not subject to, the process of the Court.”
12.It is not established that the original document is available with the accused and as the accused is not legally bound to produce the document, no notice could be issued to the accused under Section 66 of the Indian Evidence Act. Therefore, the Xerox copy of the document cannot be marked under Section 65 of the Indian Evidence Act. Therefore, the order passed by the learned Magistrate is set aside and consequently, the petition filed by the complainant/respondent herein before the trial Court under Section 91 Cr.P.C. is dismissed.
13. However, the learned Judicial Magistrate, Tambaram, is directed to expedite the trial in CC.No.234 of 2008 and complete the same, within a period of two months from the date of receipt of a copy of this order.
In the result, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.
The Judicial Magistrate,