1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.5498 of 2011 and M.P.(MD) NO.1 of 2011 Moni : Petitioner -Vs- The State of Tamil Nad rep. By its Sub Inspector of Police, District Crime Branch Police Station, Kanyakumari District, Nagercoil crime No.40 of 2007 : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the order passed by the Judicial Magistrate No.1, Nagercoil in C.M.P.No.332 of 2011 in C.C.No.222 of 2009 dated 12.04.2011 and set aside the same and allow the application as prayed for. For Petitioner : Mr.N.Dilipkumar For Respondent : Mr.K.V.Rajarajan G.A. (Crl. Side) For Intervenor : Mr.G.R.Swaminathan O R D E R This petition has been filed to call for the records relating to the order passed by the Judicial Magistrate No.1, Nagercoil in C.M.P.No.332 of 2011 in C.C.No.222 of 2009 dated 12.04.2011 and set aside the same and allow the application as prayed for. 2.The learned counsel appearing for the petitioner/accused would submit that on the basis of the complaint given by the defacto complainant/Intervenor, a case in crime No.40 of 2007 has been registered for the offence under sections 419 and 420, 468, 471 read with 120 (B) I.P.C., which was taken on file in C.C.No.222 of 2009 for the offence under Sections 420, 465, 468, 471 read with 34 I.P.C. He would further submit that during the trial, the petitioner/accused filed an application in Crl.M.P.No.332 of 2011 under Section 91 Cr.P.C., to call for the documents viz., (i) 'B' Register abstract memo relating to Mini Bus bearing Registration No.TN 57 A 7898, (ii) All papers and petitions relating to transfer the permit, R.C. Tax paid ledger, https://hcservices.ecourts.gov.in/hcservices/ 2 Insurance and all other available documents in TN 57 A 7898 from the year 2000 to 2010 December and (iii) “b” Register abstract memo relating to TN 74 F 6220, but, the trial Court has dismissed the application, after considering the objection made by the respondent police and hence, he has come forward with the application stating that to prove his innocence, he must be given opportunity to send for the documents under Section 91 Cr.P.C. 3.The learned counsel appearing for the petitioner would further submit that P.W.1 has categorically admitted that relating to the vehicle with Registration No.TN 57 A 7898 and it has got nexus to TN 74 F 6220. It was also admitted by P.W.1 in his cross examination that the permit issued to TN 59 A 7898 was actually transferred to TN 74 F 6220. It is also admitted by P.W.1. that he purchased TN 57 A 7898 and sold it on 01.11.2011 through his son along with the permit to one Sasikumar and hence, the evidence of P.W.1 evidently shows that the production of the documents called for is very much necessary to substantiate the petitioner case and hence, he prayed for the allowing of the application. To substantiate his argument, he relied upon the decisions of the Apex Court in State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568 and submits that if any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise, since defence of the accused is not relevant at that time. Hence, the accused/petitioner is entitled to seek order under Section 91 would ordinarily not come till the stage of defence and when the Section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. He would further submit that to prove his innocence, he wants the documents and hence, he prayed for the allowing of the application. 4.Repudiating the same, the intervenor/defacto complainant would submit that the trial Court has considered all the aspects and come to the conclusion that all those documents have already been filed and hence there is no necessity to call for the documents as prayed for by the petitioner. He would further submit that that the R.T.O of Nagercoil has been examined as P.W.8 and the Superintendent of that Office has been examined as P.W.7 and P.A. To R.T.O was examined as P.W.6 and through them all the xerox copy of certified documents in respect of TN 74 F 6220 have been marked as Ex.A7 and other documents in respect of TN 57 A 7898 are not relevant to this case and hence, the trial Court has dismissed the application filed by the petitioner and hence, he prayed for the dismissal of the application. 5.The learned Government Advocate (criminal side) would submit that the xerox copy of the certified copy of documents have already been produced before this Court and P.Ws.1 to 12 have already been examined and only two witnesses are yet to be examined and hence, he prayed for the dismissal of the application. https://hcservices.ecourts.gov.in/hcservices/ 3 6.I have heard the submissions made on either side and perused the materials available on record. 7.On the basis of the complaint given by the defacto complainant/intervenor, a case has been registered in crime No.40 of 2007 for the offences under Sections 419 and 420, 468, 471 read with 120 (B) I.P.C and after investigation, charge sheet has been filed for the offences under Sections 420, 465, 468, 471 read with 34 I.P.C. against the petitioner. Admittedly, P.Ws.1 to 12 have already been examined. P.W.6 is the P.A. to R.T.O., P.W.7 is the Superintendent of R.T.O office and P.W.8 is the Regional Transport Officer. Admittedly. Document No.3 is the xerox copy of certified documents and the same has been marked as Ex.P7. 8.While perusing the charge sheet, it has been mentioned that the 1st accused contra to the terms of agreement failed to return the R.C.Book, Permit, Tax Receipt and Insurance Policy and intentionally and fraudulently changed the stage carriage permit and R.C. In his name in collusion with the 2nd accused on 05.01.2006 and 10.01.2006 respectively by forging the signature of the defacto complainant and used the same as genuine. The said vehicle number is TN 74 F 6220. 9.Now the dispute is whether the petitioner/A1 has forged the signature of the defacto complainant and transferred the vehicle and permit in his name. 10.Admittedly, since the petitioner is an accused and he is facing the criminal proceedings in criminal jurisprudence, a fair opportunity must be given to the petitioner/accused to prove his innocence. Since A1/accused, who filed this petition to send for the documents to prove his innocence, no prejudice will be caused, if a direction given to the Judicial Magistrate to dispose of the case within a time frame after send for the documents. Since the documents are of the year of 2000 – 2010 and if those documents are not available with the R.T.O office, it is not impediment for the Court for proceeding with the trial. Therefore, to meet the ends of justice, a fair opportunity should be given to A1/the petitioner herein to prove his innocence. 11.Therefore, I am inclined to set aside the order passed by the trial Court dated 12.04.2011 made in C.M.P.No.332 of 2011 in C.C.No.222 of 2009 and allow this application and issue summons to send for the documents within a period of 15 days from the date of receipt of a copy of this order and since already P.Ws.1 to 12 have been examined and only two witnesses are yet to be examined, the learned Judicial Magistrate No.1, Nagercoil, is directed to dispose of the case within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Judicial Magistrate No.1, Nagercoil. 2.Do through the Chief Judicial Magistrate, Nagercoil, Kanyakumari District 3.The Sub Inspector of Police, District Crime Branch Police Station, Kanyakumari District, Nagercoil. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai Copy to:- The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai +One cC to Mr.G.R.Swaminathan, Advocate, SR.No.32979 arul' rl/7c – 30.9.2011 Pre-Deliver order made in Crl.O.P.(MD).No.5498 of 2011 22.09.2011 https://hcservices.ecourts.gov.in/hcservices/