PANKAJAM RAMASWAMY Vs. M R ELANGOVAN

JUDGEMENT

(1.) The revision petitioner herein is the complainant in C.C. No. 16557 of 2004, on the file of the V Metropolitan Magistrate, Chennai and had filed the complaint for an offence under Section 138 of the Negotiable Instruments Act against the accused/respondent herein. The complainant is also represented by power agent who is the husband of the complainant. On the side of the complainant, already four witnesses have been examined, but none of the witnesses has been cross examined by the accused. At this stage, the respondent herein filed a petition before the trial Court under Section 311 Cr.P.C, for issuing summons to the complainant and to examine her, as her evidence is essential for the first decision of the case. The trial Court also allowed the application filed by the respondent under Section 311 to examine the complainant as a witness. It is not mentioned in the petition filed by the accused that whether complainant is to be examined as Court witness. In the said circumstances, the application under Section 311 Cr.P.C being filed by the accused for summoning the complainant, it amounts to examining the complainant as a defence witness. It is peculiar and not known as to how the learned Magistrate allowed the said application. After allowing the said application, the petitioner herein/complainant filed a petition under Section 284 Cr.P.C, praying the Court to pass an order for appointing a Commissioner to examine her at her residence. An affidavit was also filed by the petitioner before the learned Magistrate stating that the petitioner is a lady aged about 71 years and she had undergone knee replacement surgery on both legs and she is unable to walk and move freely and she had again undergone surgery due to revision arthroplasty right knee and unable to stand and practically she is a handicapped person. Due to health condition, the petitioner prayed for appointment of Commissioner to examine her as a witness. The learned Magistrate also allowed the said petition. After passing that order, the learned Magistrate also appointed an Advocate Commissioner to record the evidence of the petitioner. The accused/respondent herein aggrieved by the order passed by the trial Court, preferred a revision before the learned Sessions Court, Chennai and the said order was set aside by the learned VI Additional Sessions Judge, Chennai in Crl. R.C. No. 113 of 2006. Aggrieved by the order of the VI additional Sessions Judge, the complainant/petitioner herein has preferred the present revision before this Court.

(2.) Mr. K.V. Sridharan, learned counsel appearing for the petitioner submitted that after the trial Court considering the reasons given by the petitioner herein on medical grounds permitted the petitioner to be examined at her residence by appointing a Commissioner but the learned Sessions Judge, without giving any sufficient reasons, had reversed the order.

(3.) The learned counsel appearing for the respondent submitted that the learned Magistrate had erroneously invoked the provision under Section 284 Cr.P.C and on earlier occasion, the complainant avoided entering into the Box and she is represented in the complaint only by her husband and she had come forward with an application under Section 284 Cr.P.C only after knowing that she could not escape from entering into the Box as application filed under Section 311 Cr.P.C was allowed to summon and cross examine her.