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2011 DIGILAW 1622 (RAJ)

Tarun Kirana Store v. Devendra Sharma

2011-08-08

PRASHANT KUMAR AGARWAL

body2011
JUDGMENT 1. - The complainant-petitioner has preferred this criminal misc. petition under Section 11 Criminal Procedure Code against the impugned order dated 21.9.2006 passed by the Additional Chief Judicial Magistrate No. 9, Jaipur City, Jaipur in Criminal Case No. 4264 of 2005 whereby the learned Magistrate dismissed the application filed on behalf of the petitioner under Section 11 Criminal Procedure Code. 2. The brief relevant facts for the disposal of this petition are that the petitioner filed a complaint for the offence under Section 11 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act") against the accused-non-petitioner stating therein that the non-petitioner purchased some goods from the complainant-petitioner for the purpose of marriage in his family and to ensure the payment of price of the goods purchased the non-petitioner issued a cheque dated 24.4.2004 for an amount of Rs. 30,000/-. It was also stated that the complainant submitted the disputed cheque in bank, it was dishonoured with this remark that sufficient funds are not available in the account. The complainant after serving legal notice filed complaint in the Trial Court. In support of complaint the complainant produced oral as well as documentary evidence, whereas the non-petitioner after his examination under Section 11 Criminal Procedure Code produced the Manager of the bank concerned as his defence witness. Thereafter, the petitioner submitted an application under Section 11 Criminal Procedure Code praying therein that the brother of non-petitioner Mr. Rajesh Sharma may be summoned as a witness. The learned Trial Court after hearing both the parties dismissed the application filed on behalf of the petitioner by passing the impugned order.Feeling aggrieved the complainant-petitioner is before this Court by way of this petition. 3. Assailing the impugned order the learned counsel for the petitioner has submitted that the defence witness Bank Manager produced on behalf of the non-petitioner in his statement has stated that the cheque in dispute is of an account maintained by Mr. Rajesh Sharma, whereas that cheque was issued by the non-petitioner in lieu of payment of sale price of goods sold by the petitioner to the non-petitioner. It was also submitted that if Mr. Rajesh Sharma appears as a witness on behalf of the petitioner, he in his examination-in-chief would be asked whether the cheque in question bears the signature of non-petitioner or of Mr. Rajesh Sharma. It was also submitted that if Mr. Rajesh Sharma appears as a witness on behalf of the petitioner, he in his examination-in-chief would be asked whether the cheque in question bears the signature of non-petitioner or of Mr. Rajesh Sharma. It was also submitted that the cheque in dispute was dishonoured with this remark that in the bank account there are insufficient funds so as to honour it and not on the ground that it does not bear the signature of the person from whose account it has been issued. The learned counsel further submits that under Section 11 Criminal Procedure Code the Court should allow to summon a material witness so as to ensure that best evidence available is brought before the Court.In support of his submissions, the learned counsel for the petitioner relied upon Zahir Habibullah Sheikh & Anr, v. State of Gujarat & Ors., 2006 Cr.LR (SC) 346 . 4. On the other hand, the learned counsel for the non-petitioner supporting the impugned order, submitted that the petitioner filed the complaint with this averment that the cheque in dispute was issued by the non-petitioner from an account maintained by him whereas the contention of the non-petitioner from the very beginning is that he did not issue the cheque in dispute. It was also submitted that the defence witness produced on behalf of the non-petitioner on the basis of documents has stated that the cheque in dispute belongs to an account maintained by Mr. Rajesh Sharma and there is similarly in specimen signature of Mr. Rajesh Sharma and the signature found on the cheque in dispute. The learned counsel further submitted that in the light of these facts, no useful purpose would be served if Mr. Rajesh Sharma who is brother of non-petitioner is examined as a witness as from his examination nothing new can be brought before the Court so as to support the case of the petitioner. It was also submitted that a party cannot be allowed to produce additional evidence so as to fill lacuna left by him during his evidence.In support of his submissions, the learned counsel for the non-petitioner relied upon Rajendra Prasad v. Narcotic Cell, report in (1989) 6 SCC 110 . 5. It was also submitted that a party cannot be allowed to produce additional evidence so as to fill lacuna left by him during his evidence.In support of his submissions, the learned counsel for the non-petitioner relied upon Rajendra Prasad v. Narcotic Cell, report in (1989) 6 SCC 110 . 5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law cited on behalf of the parties. 6. I am of the considered view that the complainant-petitioner has failed to show any reason so as to interfere in the impugned order passed by the Trial Court. Although, it is the duty of the Court that for a proper disposal of a dispute pending before it, it is ensure that best available evidence is brought before the Court and in proper case the Court should allow to summon a material witness so as to prevent failure of justice, but in the present case I do not think examination of Mr. Rajesh Sharma, who is brother of non-petitioner, in any way serve the purpose of the petitioner. The petitioner has averred in the complaint as well as in the affidavit filled in support of that, the cheque in dispute was issued by the non-petitioner that means the petitioner himself admits that it bears the signature of the non-petitioner. The petitioner has also stated that non-petitioner issued the cheque in dispute on his account to ensure the payment of sale price of goods purchased by him from the shop of the petitioner. The contention of the non-petitioner from the very inception is that he has not issued the cheque in dispute. In my view the petitioner cannot resile from his admission and even if Mr. Rajesh Sharma admits in his statement that the cheque in dispute, it cannot in any way serve the purpose of the petitioner who has to prove that the cheque in dispute was issued by the non-petitioner from an account maintained by him.Similarly, if Mr. Rajesh Sharma states that the cheque in dispute bears the signature of non-petitioner even then his statement cannot be preferred to the statement of the Bank Manager produced as a defence witness who on the basis of documents has already stated that there is similarly in the specimen signature of Mr. Rajesh Sharma states that the cheque in dispute bears the signature of non-petitioner even then his statement cannot be preferred to the statement of the Bank Manager produced as a defence witness who on the basis of documents has already stated that there is similarly in the specimen signature of Mr. Rajesh Sharma and signature upon the cheque in dispute. Similarly, if Mr. Rajesh Sharma admits that the cheque belongs to an account maintained by him even then it would not serve the purpose of petitioner as he has to prove that the cheque in dispute was issued from an account maintained by the non-petitioner. If Mr. Rajesh Sharma states that the cheque in dispute was issued from an account maintained by the non-petitioner then his statement cannot be preferred to the statement of the Bank Manager who has categorically deposed that the cheque in dispute belongs to an account maintained by Mr. Rajesh Sharma. The learned counsel for the petitioner failed to show how the examination of Mr. Rajesh Sharma is material for the disposal of the dispute pending before the Trial Court.Consequently, the criminal misc. petition on behalf of the petitioner being devoid of merit is, hereby, dismissed at the admission stage itself.Petition Dismissed. *******