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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
N. ANAND VENKATESH, J.
A. Koodalingam - Appellant
Versus
M. Sangilinathan - Respondent
Crl. O.P. (MD) No. 2796 of 2017 and Crl. M.P. (MD) No. 2140 of 2017
Decided On : 12-09-2019
Negotiable Instruments Act - Section 138 – Criminal Procedure Code - Section 311 - Evidence Act - Section 45-A - Electronic evidence for expert – First information report – Condo nation of delay - In meantime respondent had given a complaint before South Police Station, , against petitioner on ground that petitioner has extracted exorbitant interest from the respondent and has also abused and threatened the respondent. The complaint was taken on file and an FIR came to be registered in Crime concerned police investigated the case and a final report came to be filed before the learned Judicial Magistrate and same was taken on file - respondent had approached this Court seeking for a direction to the Court below to send certain electronic evidence for expert analysis and to get an expert report in order to substantiate the allegations made by the respondent against petitioner - petitioner being complainant has come forward with this petition seeking a direction to learned Judicial Magistrate to receive the primary evidence of Cell phone and memory card from the petitioner under Section 91 of the Code of Criminal Procedure and forward the same through a court appointed advocate commissioner for expert analysis as provided – Held, If the above said proviso is invoked, the summary procedure contemplated under Section 143(1) of Negotiable Instruments Act can be dispensed with and in which case, it falls within the purview of a summons case - This is in view of the fact that the Code of Criminal Procedure will start applying to such cases. In such an event, Section 259 can be resorted to and it is possible, on the facts of a given case, to justify such a course - In this manner, a complaint under Section 138 of NI Act can be tried under a warrant procedure also - In the facts of the present case taken by the respondent and the evidence that is going to be relied upon by him to substantiate his is the same evidence, which is going to be relied upon by the prosecution to prosecute the petitioner - For this purpose, it is not necessary to record the evidence of same witness and mark the same documents separately in both the cases. This view of mine is supported by the judgments referred supra - Two cases in are now pending before the same Court, viz., Judicial Magistrate, proper course that can be adopted by the learned Judicial Magistrate would be to try both the cases together, but not to consolidate it. The evidence should be recorded separately in both the cases, one after other, except to the extent that witnesses, who are common and documents, which are common to both the cases, can be examined/marked in one case and their evidence can be read as evidence in the other case. By adopting to this procedure, no prejudice will be caused to petitioner and Court below can avoid duplication of the same set of evidence - Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code Provided further that when at the commencement of, or in the course of, a summary trial under this section - Petition disposed of
ORDER :
N. ANAND VENKATESH, J.
1. This Criminal Original Petition has been filed against the order passed by the Court below allowing the application filed by the respondent under Section 311 of Cr.P.C., to issue summon to the Director and Chemical Examiner, Forensic Sciences Department, Chennai, and to mark the expert opinion given by the said authority.
2. The petitioner is the complainant in the complaint filed against the respondent for an offence under Section 138 of Negotiable Instruments Act. The case of the petitioner is that in the course of his business transaction, the respondent approached the petitioner and obtained a loan and issued cheque for a sum of Rs. 32,00,000/- (Rupees thirty two lakhs only). When this cheque was deposited in the bank of the complainant, the same was dishonoured with an endorsement "funds insufficient". Therefore, the petitioner has proceeded to file a criminal complaint against the respondent for the offence under Section 138 of Negotiable Instruments Act.
3. In the meantime, the respondent had given a complaint before the South Police Station, Rajapalayam, against the petitioner on the ground that the petitioner has extracted exorbitant interest from the respondent and has also abused and threatened the respondent. The complaint was taken on file and an FIR came to be registered in Crime No. 598 of 2013. The concerned police investigated the case and a final report came to be filed before the learned Judicial Magistrate, Rajapalayam, and the same was taken on file in S.T.C. No. 3467 of 2014.
4. The respondent had approached this Court seeking for a direction to the Court below to send certain electronic evidence for expert analysis and to get an expert report in order to substantiate the allegations made by the respondent against the petitioner.
5. It will be useful to extract the relevant portion of the order passed by this Court in Crl. O.P. (MD). No. 2621 of 2015, dated 15.04.2015:
2. Heard learned counsel for the petitioner, learned Government Advocate (Criminal side) for the respondents and learned Advocate Commissioner.
3. On the earlier occasion this Court has appointed a learned Advocate Commissioner to carry out certain works including handing over the petitioner's cell phone and memory card to the Director and Chemical Examiner, Forensic Science Department, Chennai and obtain a detailed compliance with the order passed by this Court. The report contains three sealed covers along with transcription, articles and C.D. Thus the prayer sought for has been substantially complied with.
4. Considering the above, learned Government Advocate (Criminal side) is directed to hand over the evidence collected in pursuance to the order passed by this Court to the order passed by this Court to the first respondent viz., the Superintendent of Police, Virudhunagar District. The respondent No. 1 is further directed to hand over the same to respondent No. 3. The respondent No. 1 is also direct
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