IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION Nos.2391 & 5894 of 2009 DATE:19.11.2010 Crl.P.No.2391 of 2009 Between: K.Ravi Kishore and 2 others …… Petitioners And P.Prameela and another …..Respondents Crl.P.No.5894 of 2009 Between: K.Sai Prasad …… Petitioner And P.Prameela and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION Nos.2391 & 5894 of 2009 COMMON ORDER : These two criminal petitions are filed by A-1, A-3, A-4 and A-5 respectively questioning order dated 26.02.2009 passed by the Metropolitan Sessions Judge, Vijayawada in Crl.Rev. Petition No.114 of 2007 by which order dated 03.08.2007 passed by the III Additional Chief Metropolitan Magistrate, Vijayawada discharging the accused, was set aside. 2) Unsuccessful complainant/1st respondent before the police filed C.C. No.10 of 2001 before the Magistrate regarding alleged encashment of money by way of cheating by forgery of her fixed deposits. The offences alleged are punishable under Sections 420, 419 and 468 I.P.C. While so, some of the accused filed Crl.P.No.1970 of 2001 before this Court for quashing criminal proceedings therein and obtained stay of further proceedings in the criminal case. On 09.09.2004 this Court dismissed Crl.P.No.1970 of 2001. Thereafter the 1st respondent/complainant filed Crl.M.P.No.4211 of 2005 before the Magistrate under Section 91 Cr.P.C to send for certain original documents from State Bank of India, Governorpet branch, Vijayawada and Union Bank of India, Lakshmipuram Branch, Guntur. The said petition was dismissed by the Magistrate on 02.11.2005. Subsequently the 1st respondent filed Crl.M.P.No.6311 of 2005 on 11.11.2005 to send for original T.D.Rs and other documents containing the alleged forged signatures. The Magistrate dismissed the said petition on 21.12.2006. As against the said order, 1st respondent filed Crl.Rev.Petition No.23 of 2006 before the Metropolitan Sessions Judge, Vijayawada and it was allowed. Thereupon, the Magistrate issued summonses to the Manager, Union Bank of India, Guntur to produce documents. In spite of summonses, both State Bank of India and Union Bank of India are stated to have not produced relevant documents. 3) While it was so, the Magistrate was posting the case for recording evidence of the complainant before framing of charges. Neither the complainant examined herself as witness nor produced any witnesses mentioned in the complaint in support of allegations contained in her complaint in order to facilitate the Magistrate to frame charges. It is contended by the 1st respondent’s counsel that when summonses were issued to the bankers for production of documents and when they did not produce documents, the Magistrate should have taken further steps to coerce the bankers for production of the summoned documents. The lower revisional Court also observed that it is duty of the Magistrate to take coercive steps in that regard. In obedience to orders in the revision petition passed by the Metropolitan Sessions Judge, Vijayawada, the Magistrate issued summonses to the bankers. If the bankers did not produce documents, it is for the complainant to take further steps by way of moving the Magistrate to take coercive steps. Instead of moving the Magistrate by way of a petition for taking coercive steps against the bankers for production of records, the complainant sat quiet. The complainant wants to throw the entire blame on the Magistrate as if the Magistrate did not perform duty cast on him. There is no duty cast on the Magistrate under the Code of Criminal Procedure, 1973 to act suo motu for taking coercive steps against the persons who did not produce summoned documents in pursuance of notice under Section 91 Cr.P.C. 4) Even though stay in this matter stood vacated even in the year 2004, except filing petitions under Section 91 Cr.P.C, the 1st respondent/complainant did not show any inclination to lead her evidence in support of her case before charges. A reference to Section 244 Cr.P.C may be made at this juncture; and it reads: “244 Evidence for prosecution (1) When, in any warrant-case instituted otherwise than on police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing”. 5) Thus, it is for the complainant in a warrant case instituted otherwise than on police report to produce evidence before the Magistrate. On such production, duty is cast on the Magistrate to take all such evidence as may be produced in support of the prosecution by the complainant. As per Section 244(2) Cr.P.C, the Magistrate shall on application of the prosecution/complainant issue summons to any of the witnesses directing him to attend or to produce any document or other thing. The Magistrate in this case performed his duty as contemplated under Section 244(2) Cr.P.C. If there is any non-compliance or disobedience of notice issued by the Magistrate under Section 91 Cr.P.C by any witness or person, then it is for the prosecution/complainant to take further steps in that regard. The complainant without taking any active steps before the trial Court, cannot be now heard to say that another opportunity should be given to the complainant to produce her evidence. The case before the trial Court has been pending since the year 2001. Virtually there is no stay of the proceedings after the year 2004. The only effort made by the complainant in this case is filing two petitions before the Magistrate to send for documents from two banks and nothing else. Nothing prevented P.W-1 to enter into witness box and depose to the facts and produce her witnesses, reserving her right to recall herself as and when the documents are produced. The complainant did not do so. For three long years after vacation of the stay, there was no progress in enquiry/trial of the case prior to framing of charges. Therefore, this Court is of the opinion that the Magistrate is legally justified in discharging the accused invoking the provision under Section 245 Cr.P.C. 6) In the result, both the criminal petitions are allowed setting aside order dated 26.02.2009 passed by the Metropolitan Sessions Judge, Vijayawada in Crl.Rev.Petition No.114 of 2007. _______________________________ SAMUDRALA GOVINDARAJULU, J November 19, 2010 ksh