IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 07.11.2023 Coram:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.O.P.Nos.20867, 20869 & 20871 of 2023

1. Subash Chand Jain

2. Abhishek Jain ... Petitioners/Accused in all cases /versus/

The Tamil Nadu News Print and Paper Limited, Represented by its Manager (Legal), Mr.L.Sezhian, No.67, Mount Road, Guindy, Chennai – 600 032. ... Respondent/Complainant in all cases Prayer: Criminal Original Petitions are filed under Section 482 of Cr.P.C., pleased to call for the records made in C.M.P.Nos.7286, 7283 & 7284 of 2023 in C.C.Nos.4434, 1120 & 4432 of 2019 respectively, on the file of Metropolitan Magistrate, FTC-III, Saidapet, Chennai – 45 and set aside the same and declare the petitioner as unsound mind person under Section 329 of Cr.P.C, after accepting the materials placed before the trial Court or examine the petitioner before medical Board in New Delhi in any Government Hospital at New Delhi on humane consideration and record a finding to that effect and postpone further proceedings in C.C.No. of to secure the ends of justice.

For Petitioners : Mr.R.Sankarasubbu in all cases For Respondent : Mr.Richardson Wilson in all cases O R D E R The petitioners herein are the accused for the alleged offence under Section 138 N.I Act proceedings pending on the file of Metropolitan Magistrate, FTC-III, Saidapet. The 1^st petitioner has taken out an application under Section 329 of Cr.P.C., to declare him as a person of unsound mind as he is incapable of understanding the proceedings of the Court and therefore, appropriate order been passed subjecting him to medical examination by Board of Doctors.

2. The trial Court, after hearing both sides had found that the case is pending since 2019. The accused has filed six medical reports starting from the year 2017 to 2023 to support his plea that the petitioner is not of sound mind and suffering from dementia. The said contention is vehemently opposed by the Learned Counsel appearing for the respondent/complainant stating that the petitioner is running several Educational Institutes, he owe more than Rs.6 crores to the complainant firm and not co-operating with the trial since 2019 and the present petition is filed even without presenting himself before the Magistrate in person for the Magistrate to assess the mental health condition of the petitioner and proceed on his application under Section 329 of Cr.P.C. In such circumstances, the Learned Magistrate has rightly held that, to determine the mental faculty of the accused, whether he is capable of defend himself, he shall have to be assessed by the Court and for the said purpose, examination of the person is necessary. It being a mandate under the Statute merely by referring to medical papers and certificates of Medical Board, a Court cannot pass order either discharging the accused or postponing the trial. He has also referred the medical report of the year 2016 and recorded the fact that the petitioner was present before the Court on 12.02.2001 and answered the questioning under Section 251 Cr.P.C., had passed an interim order directing the petitioner to appear before him on

31.07.2023, to assess about his soundness of mind.

3. The said order is under challenge on the ground that the voluminous medical report produced clearly show the mental incapacity of the accused and therefore, the trial Court ought not to have forced the accused to appear in person before him.

4. The Learned Counsel appearing for the complainant/respondent by producing certain photographs of the accused participating in the College Functions and Prize Distribution Ceremony submitted that the petitioner may be not having good health but claiming that, he is unsound mind and suffering from dementia is far from truth.

5. It is a case where physical and mental condition of a person has to be tested by Competent Court and decide whether to proceed further or stop the proceedings in view of the mental condition of the accused. For the said pu