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2007 DIGILAW 1202 (BOM)

Chandrakant Ganpatrao Ghuse v. Vasantrao Vitthalrao Zade

2007-08-24

C.L.PANGARKAR

body2007
JUDGMENT 1. Rule. Returnable forthwith. Heard Finally with consent of parties. 2. These two applications under Sections 482 of the Code of Criminal Procedure are filled against the order of the Judicial Magistrate (F.C.), whereby he rejected an application for summoning a witness along with certain document. 3. The present applicants are the accused in criminal case instituted against them under Section 138 of the Negotiable Instrument Act. It is the case of the complainant that the present applicant/accused issued a cheque which came to be dishonoured. After conclusion of the evidence of the complainant, the statement of the accused/applicant was recorded by the court under Section 313 of the Cr.P.C. While such statement was recorded, the accused has stated that besides him, he also wants to examine certain other witness. 4. The accused examined himself and another witness. Thereafter he filed an application on 3/7/2007 summoning a witness from the bank along with slip under which, the cheque in dispute was deposited in the bank. The said application came to be rejected by the Judicial Magistrate saying that no purpose would be served by summoning such witness. Being aggrieved by that order, these two applications have been preferred. 5. I have heard Mr.Firdos Mirza, learned counsel for the applicants/accused and Mr.Kotwal, learned counsel for non-applicant no.1. 6. Section 254 of the Code of Criminal Procedure grants a right to the accused to tender an evidence in his defence. Accordingly, it appears that the accused made an application to summon the witness from the bank along with the slip under which the cheque in dispute was deposited. It is brought to my notice that it is after this application dated 3/7/2007 was filed, another witness called by the accused has already been examined. If such a witness could have been examined after filing of the application dated 3/7/2007, one wonders why the learned Magistrate though it fit not to summon this witness as per this application. The evidence of the accused cannot be shut like that. He has every right to summon all those witnesses whose evidence is necessary for just decision of the matter. It was contended on behalf of the non-applicant that this document itself has no bearing on the case. The question as to whether the document has bearing on the case or not has to be decided after such document is placed before the court. It was contended on behalf of the non-applicant that this document itself has no bearing on the case. The question as to whether the document has bearing on the case or not has to be decided after such document is placed before the court. In view of this, I find that the application should have been allowed by the learned Magistrate. The order passed by the learned Magistrate is, therefore, set aside. The Magistrate shall now issue summons to the witness from the bank with the slip as desired by the accused. The accused should take steps that the witness appears before the court immediately and court should also see that entire process of examining of this witness is completed within 15 days from the date of receipt of this order. With these directions, both petitions stand disposed of. Authenticated copy of this order be supplied to the non-applicants. Petitions disposed of.