D. Swornapushpam vs A. Rajkumar

P.R. Shivakumar, J.—Heard.

This revision has been filed against the order dated 16.05.2013 passed by the learned Judicial Magistrate, Fast Track Court at Magisterial Level, Karaikudi dealing with a case instituted by the respondent herein on a complaint, as C.C. No. 193 of 2012 for an alleged offence under Section 138 of the Negotiable Instruments Act.

The revision petitioner/accused seems to have denied the existence of a debt for the discharge of which the dishonoured cheque was allegedly issued. Along with the complaint, the respondent herein/complainant produced only five documents, viz. the dishonoured cheque, the intimation of the bank, copy of the statutory notice issued by the complainant through his Advocate, the Acknowledgement Card evidencing service of the said notice and the reply notice sent by the petitioner herein/accused.

The trial of the case has not yet begun. While seeking to adduce evidence by way of proof affidavit, the respondent herein/complainant chose to annex one more document, viz. the Promissory Note allegedly executed by the petitioner herein/accused in favour of the respondent herein/complainant on 06.07.2011 in an attempt to prove that there was pre-existing debt, in discharge of which the dishonoured cheque came to be issued by the petitioner herein/accused. As the same was not produced along with the complaint and it was sought to be produced at the time of adducing evidence, the respondent herein/complainant filed Crl. M.P. No. 1825 of 2013 praying that he may be permitted to produce the said document in proof of his case, condoning the delay in producing the same. In the supporting affidavit, the complainant had stated that the said promissory note had been misplaced and was not readily available to be produced along with the complaint and that the same was traced out after making a search and was sought to be produced along with the proof affidavit as Document No. 5 annexed to the proof affidavit.

The petition was resisted stating that there was no provision in the Code of Criminal Procedure for condoning the delay in producing the documents. The learned Judicial Magistrate, after hearing, held that there was no substance in that objection and allowed the petition by order dated 16.05.2013. Challenging the said order, the present revision has been filed.

Though the revision petitioner would contend that there is no provision in the Code of Criminal Procedure corresponding to the provisions found in the Code of Civil Procedure for condoning the delay in producing the documents relied on by the complainant, the learned counsel for the revision petitioner is not in a position to point out any provision in the Code of Criminal Procedure that bars the Court from receiving any document in evidence, which was not filed along with the complaint. The absence of a provision mandating the complainant to annex all the documents which are relevant for the proof of the complainant''s case or a provision requiring the complainant to list such documents in a separate list that could be appended with the complaint, as documents to be produced at a later point of time, will be enough to negative the contention of the revision petitioner that the complainant shall not be permitted to produce any document which was not produced along with the complaint, during the course of trial.

Of course, if the document is one based on which complaint itself has been preferred, the non-production of the same along with the complaint can be found fault with. When a relevant fact is sought to be proved by the production of such additional document, it must be considered leniently so that the opportunity to the complainant to prove his/her case shall not be denied without there being a reasonable ground for such denial.

Considering the above said aspects, this Court comes to the conclusion that the order of the learned Judicial Magistrate permitting the respondent herein/complainant to produce the promissory note allegedly executed by the revision petitioner/accused to prove that there was preexisting debt in discharge of which the dishonoured cheque was issued, cannot be said to be either infirm or defective capable of being interfered with and reversed by this Court in exercise of its power of revision.

The very scheme provided in the Negotiable Instruments act for the prosecution of the accused for an offence under Section 138, provides for an initial presumption under Section 139 of the Negotiable Instruments Act that the receipt of the cheque shall be for the discharge of the debtor/liability, which presumption can be rebutted by the accused. On such rebuttal, the burden shall be cast on the complainant to prove the existence of the debt and also the complainant''s claim that the cheque was issued for the discharge of the debt or other liability. When such is the case, till the presumption is rebutted and the burden is shifted on the complainant, the complainant cannot be expected to lead any evidence in proof of the debt and the fact that the cheque was issued in discharge of such debt or other liability. The said position will make it clear that the document required for the proof of the debt or other liability can be produced at a later point of time, when the burden shall stand shifted on the complainant. If these aspects are taken into consideration, this Court can, without any hesitation, come to the conclusion that there is no defect or infirmity in the order of the learned Judicial Magistrate, which is sought to be challenged in the revision. There is no merit in the revision and the revision deserves to be dismissed.

Accordingly, the Criminal Revision Case is dismissed. Consequently, the connected miscellaneous petition is also dismissed.