Research › Search › Judgment

Bombay High Court · body

2008 DIGILAW 553 (BOM)

Shanti Krishi Seva Kendra v. State of Maharashtra

2008-04-11

S.R.DONGAONKAR

body2008
JUDGMENT: Heard Shri B.N. Mohta, Advocate for applicant, Shri A.S. Fulzele, A.P.P. for respondent no.1 and Shri Z. A. Haq, Advocate for respondent no.2. 2] This is an application under section 482 of Criminal Procedure Code. 3] The applicant is an accused in a complaint case filed by the respondent no.2 for the offences under section 138 of the Negotiable Instruments Act. The said complaint is filed on 10.9.2003 and it is pending before the Judicial Magistrate First Class, Patur. It is alleged that the relevant cheque was issued for the due amount towards the purchase of goods. The defence of the applicant - accused was of denial of liability. His statement under section 313 was recorded He wanted to adduce evidence in rebuttal and in support of his contentions as regards his no liability towards respondent complainant. It is necessary to mention that the petitioner / accused had submitted his affidavit in the nature of his evidence as per Ex.137. According to him, at that time some documents were available, so they were filed. But some of them were not available at the relevant time. The matter was posted on 11.4.2007 for the cross examination of the applicant. It is alleged that in the meantime the applicant accused received some more documents and he wanted to produce the same. Accordingly, he filed an application Exh. 157. Along with application he filed some 9 documents as per list Exh. 158. According to the applicant accused, these documents are relevant. The documents at serial no.1 and 2 are the counter foils of the cheque numbers 0301732 and 0301733. The other documents which were sought to be filed were acknowledgment, postal receipts and certified copy of some cases i.e. SCC no. 84/2006, SCC no.131/2007, SCC no.75/2006, SCC no. 793/06, SCC no 212/2004. It was the case of the applicant accused that these documents are relevant to prove his defence. 4] Learned Magistrate after hearing the parties, found that though applicant accused had examined himself as witness, his attempt to produce these documents in the nature of evidence is not permissible. He is trying to fill in the lacuna. According to him, the allegation that the respondent complainant was a money lender, at that time would cause prejudice to the complainant. He is trying to fill in the lacuna. According to him, the allegation that the respondent complainant was a money lender, at that time would cause prejudice to the complainant. After considering the merits of the issue, he found that the request of accepting these documents i.e. which are filed along with application Exh.158 is liable to be rejected. So also, Exh.159 an application for allowing the applicant accused to lead additional affidavit in examination in chief Exh.161. As such these applications of applicant were rejected. 5] This order dated 26.4.2007 is challenged in this application. 6] Learned counsel for the applicant accused Shri Mohta has contended that the applicant accused was entitled to move this application in support of his defence. It is further his contention that the applicant - accused wanted to prove that the respondent - complainant was doing money lending business and therefore, these documents were necessary and so production of the same should have been allowed, so also an application to allow further evidence by the learned Magistrate. According to him, Rules of procedure are instruments to lead towards justice. Technicality should not over come the steps of justice and justice oriented approach should have been adopted by the learned Magistrate. He relied on the observations of the Apex Court in AIR 1969 SC 1267 - Jail Jai Ram Manoher Lal vs. National Building Material Supply, Gurgaon. As regards scope of section 311 of Cr.P.C. , he has relied on observations in 2007 ALL MR Cri. 2073 (S.C.) Iddr & others vs. Aabida & another as under: 11-The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statement of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In section 311 the significant expression that occurs is .at any stage of inquiry or trial or other proceeding under this Code.. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 7] In short, he has submitted that though the application was belated as it was in order to allow the applicant accused to prove his defence, the approach of the learned Magistrate should have been to allow the production of those documents and further evidence by the applicant accused. As such, learned counsel submitted that the impugned order of the learned Magistrate should be set aside and the applicant accused should be allowed to lead his evidence on the documents which he had produced. 8] Per contra Shri Haq, learned counsel for the respondent complainant has submitted that this is the third round of litigation. As regards the conduct of the applicant accused, this court has observed that the move taken by applicant is vexatious and obviously for causing delay in the trial vide observations in Criminal Application No.1281/2006 by this court. Therefore, according to him, this practice of the applicant accused to prolong the matter some way or the other should be curbed. Further according to him documents no.5 to 9 in the said list are not the complaints of the persons who had allegedly obtained loans from the respondent complainant. They are the certified copies of the complaints filed by he himself. According to him, the respondent no.2 (complainant) is doing the business of selling pesticides. Further according to him the cross examination of the applicant accused has been completed in August 2007. This application is filed some time in October 2007 i.e. after considerable delay. They are the certified copies of the complaints filed by he himself. According to him, the respondent no.2 (complainant) is doing the business of selling pesticides. Further according to him the cross examination of the applicant accused has been completed in August 2007. This application is filed some time in October 2007 i.e. after considerable delay. The intention is obvious and apparent, just to prolong the matter. On merits he supported the order of the learned trial Judge. 9] It may be noted that at the time of admission this court has admitted this matter to the extent as to whether the documents at serial no.1 and 2 along with the list Exh.158 should have been allowed or not. 10] Relevant documents are as stated above, are the counter foils of the cheques. The other documents are : 3Acknowledgment 15-9-06 4 receipt postal 10/09/06 5 certified copy of SCC 84/06 19.1.07 6 certified copy of SCC 131/07 09/03/07 7 certified copy of SCC 75/06 19.1.06 8 certified copy of SCC 379/06 05/04/07 9 certified copy of SCC 212/04 16.10.07 11] Though it is stated that the latter documents at serial no. 5 to 9 are pertaining to the complaints made by the borrowers against the respondent complainant, they do not appear to be so, on the contrary, vide the relevant xerox copies submitted by the respondent no.2 complainant, it appears that those are complaint cases filed by respondent - complainant u/s 138 of Negotiable Instruments Act. On close perusal of those xerox copies of the certified copies, it would be seen that they are not related to the complaints made by the loan borrowers of respondent no.2 regarding money lending transactions allegedly done by him. In these circumstances, the contention of the applicant - accused in this behalf needs to be rejected. 12] As regards the documents at serial no.1 and 2 as they are stated to be counter foils of the relevant cheques, there is no difficulty in allowing the production of the same with necessary permission to him for leading evidence, if necessary. As regards the documents no.3 and 4 which are acknowledgment and postal receipts, no specific contentions has been raised by the applicant - accused. As regards the documents no.3 and 4 which are acknowledgment and postal receipts, no specific contentions has been raised by the applicant - accused. 13] Taking over all view of the matter and considering the fact that the applicant - accused has to make out his case raised in defence, though there would be some delay in disposal of the case and applicant - accused is prolonging the matter, as observed by this court, on that count alone, the application of the applicant - accused cannot be rejected. No order can be passed by any judicial authority with any prejudice in mind. May be the applicant /accused has been observed to have been prolonging the litigation by vexatious applications. In my opinion that fact by itself would not be sufficient to reject the present application of the applicant - accused, as it is necessary to be allowed in the interest of justice and for furthering his defence. 14] In this view of the matter, this application has to be partly allowed to the extent of documents no.1 and 2 in the list of documents, as furnished by the applicant - accused as per Exh.158, wth the consequential relief of allowing him to lead evidence in that behalf. As such the application is partly allowed. Impugned order of learned Magistrate dated 26.4.2007 is hereby modified as under: The application of the applicant - accused is allowed as regards the production of documents [Exhibit 157 and 158] to the extent of document no.1 and 2 and exhibit 157 i.e. counter of cheque No.301732 and counter of cheque 301733. Consequently exhibit 161 shall also be allowed to the extent of these documents and the applicant accused would be directed to file suitable affidavit if desired in respect of those documents towards his evidence in defence within a week after his appearance in trial Court. It is made clear that the parties would appear in the trial court on 8.6.2008 and the applicant - accused shall lead evidence on the date as may be fixed learned Magistrate. Learned Magistrate shall dispose of the complaint proceedings as early as possible, in any case within a period of three months from the date of completion of evidence of the applicant – accused. Application partly allowed.