IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.7.2008 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C. Nos.761 & 762 of 2008 and M.P.No.1 of 2008 K.Rani .. Petitioner in both the revisions/Accused vs. V.S.Financiers, rep.by its Partner, V.Ranganathan .. Respondent in both the revisions/Complainant Criminal revision cases filed under Section 397 and 401 of Cr.P.C against the order dated 30.4.2008 passed in Crl.M.P.Nos.3070 and 3000 of 2008 in C.C.No.207 of 2004 on the file of the learned Judicial Magistrate, Gudiyatham. For petitioner : Mr.N.Manokaran For respondent : Mr.S.Ashok Kumar,Sr.counsel for Mr.A.Sasidharan O R D E R The petitioner herein, who is an accused in C.C.No.207 of 2004 on the file of the learned Judicial Magistrate, Gudiyatham, had preferred these two revision petitions against the order passed by the learned Magistrate in Crl.M.P.Nos.3070 and 3000 of 2008, allowing the petitions filed by the complainant for summoning a document under Section 91 Cr.P.C. and to recall the witness under Section 311 Cr.P.C., respectively. 2. The complainant/respondent had filed a complaint against the accused/petitioner for an offence under Section 138 of the Negotiable Instruments Act. A petition under Section 311 Cr.P.C. was filed by the complainant/respondent to recall the witness P.Devarajan-Advocate, who stood as a witness in an agreement dated 7.4.2004 executed by the husband of the accused. https://hcservices.ecourts.gov.in/hcservices/ That document was already summoned under Section 91 Cr.P.C., and placed before the Court. 3. The other petition filed under Section 311 Cr.P.C. was for the purpose of summoning the pass book relating to the complainant/respondent's account in the South Indian Bank Limited for the period from 11.6.1990 to 27.4.2001. 4. The learned counsel for the petitioner/accused submitted that the specific case of the complainant/respondent is that the accused/petitioner's husband issued a cheque for a sum of Rs.3,00,000/- on 7.7.2004, towards the dues to them. Now a new case has been put forth by the complainant/respondent and they are now making an attempt to mark a document, to which the accused is not a party, by examining the witness Devarajan-Advocate, and also by marking the document dated 7.7.2004-agreement, said to have been entered into between the complainant/respondent and the husband of the accused, the prosecution is trying to fill up the lacuna, which is not permissible. 5. The learned counsel also relied on the decisions reported in 1991 Crl.L.W.(Crl.) 42-GOVINDA REDDY VS. STATE; 2001 (2) MWN(Cr.) 265-A.RADHAKRISHNAN VS. INCOME TAX OFFICER, CITY CIRCLE, MADRAS; 1991 LW(CRL) 475 – N.LAKSHMANAN VS. THE TAMIL NADU ELECTRICITY BOARD, TIRUTTANI, REP.BY ITS EXECUTIVE ENGINEER MR.M.KUPPUSWAMY AND 2000 CRI.L.J.624-M/S.DANDY KNIT GARMETS AND ANOTHER VS. M/S.SUBIKSHA SPINNERS(P) LTD. He would further submit that with regard to allowing the petition under Section 91 Cr.P.C. the pass book of the complainant/respondent relating to the period from 11.6.1990 to 27.4.2001 is irrelevant for the purpose of deciding the issue in this case. 6. The learned counsel further submits that even according to the complainant/respondent the said document was available when P.W.3 the Manager of the Bank was examined, but at that time they have not chosen to mark the same. As such, the learned counsel submitted that now the complainant/respondent is making attempt to summon those documents only to fill up the lacuna in the prosecution case. 7. Mr.Ashok Kumar, learned Senior counsel appearing for the complainant/respondent submitted that only for the existing liability the cheque dated 7.7.2004 was issued and since the accused/petitioner had challenged the liability, and as the document dated 7.7.2004 had already been summoned under Section 91 Cr.P.C., in order to prove the document, examination of the https://hcservices.ecourts.gov.in/hcservices/ witness Devarajan-Advocate is very much necessary. Even the production of pass book for the period from 11.6.1990 to 27.4.2001 is also only for the purpose of establishing the dates, on which the payments were made to the accused. 8. This Court considered the submissions made by the parties and perused the records. 9. Though it is mentioned in the petition under Section 311 Cr.P.C., that the document executed by the accused/petitioner's husband on 7.7.2004 was produced before the Court only on the basis of the petition filed by the accused under Section 91 Cr.P.C., the learned counsel for the petitioner herein has denied the said fact and it is submitted by him that the document was produced by the complainant/respondent himself. 10. This Court perused the copy of the evidence of P.W.1. According to the evidence of P.W.1, the cheque dated 7.7.2004 was given by the accused for the existing debt. But in the cross-examination by the accused, the liability has been denied and various questions have been put to the complainant/respondent. Under the Negotiable Instruments Act, if the cheque is given by the accused, then the presumption may be drawn under Section 139 Cr.P.C., that the cheque was issued towards discharging the existing liability. Of course, the said presumption is a rebuttable presumption. As such, if the accused denies the liability and tries to rebut the presumption, then the complainant may try to establish the fact of existing liability. The position of law is that if the presumption is rebutted by the accused, then the burden is shifted on the complainant to establish the fact that the liability is existing. 11. In this case also only under the said circumstances, the complainant/respondent is taking care to establish the fact of existing liability. Further, whether the document dated 7.7.2004, said to have been executed by the accused/petitioner's husband had already been produced before the Court either in the course of the petition filed by the accused or by the complainant himself, the same should be marked in the evidence in the proper forum. For such purpose, anyone concerned with the document should be examined. Therefore, nothing wrong in the learned Magistrate allowing the application under Section 311 Cr.P.C.,permitting the complainant to examine the witness Devarajan-Advocate, who had stood as a witness. https://hcservices.ecourts.gov.in/hcservices/ 12. As far as summoning the document of pass-book relating to the period from 11.6.1990 to 27.4.2001 is concerned, it is only to show the details regarding the payment, the said permission has been sought for by the complainant/respondent, in order to establish the fact of existing liability, since the burden is shifted on them to prove the same. 13. The decisions cited by the learned counsel for the petitioner that filling up lacuna by the prosecution is not permissible after examination of witnesses is concerned, the same is not applicable in this case, since as already mentioned, once the accused starts rebutting the presumption, the burden is shifted on the complainant to prove the fact. As such, the steps taken by the complainant/respondent to prove the fact that there exists a liability cannot be prevented by equating to filling up lacuna in the prosecution case. 14. This Court finds no infirmity in the orders dated 30.4.2008 made in Crl.M.P.Nos.3070 and 3000 of 2008, passed by the learned Judicial Magistrate, Gudiyatham. No interference is warranted. Hence, both the criminal revisions stand dismissed. Consequently, connected miscellaneous petition is dismissed. Msk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Judicial Magistrate, Gudiyatham. 2. -do- Through The Chief Judicial Magistrate, Vellore. 2 ccs to Mr.A.Sasidharan, Advocate, SR. 39484, 39485 2 ccs to Mr.N.Manokaran, Advocate, SR.39235, 39238 ssv (co) dv/8.8. Crl.R.C. Nos.761 & 762 of 2008 https://hcservices.ecourts.gov.in/hcservices/