Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 1910 (BOM)

Menino Pereira v. Pramod Naik

2012-10-05

A.P.LAVANDE

body2012
Judgment Heard Mr. Timble, learned Counsel for the appellant, Mr. T. Pereira, learned Counsel for respondent no.1 and Mr. Lawande, learned Additional Public Prosecutor for respondent no.2. 2. By this appeal, the appellant takes exception to the judgment and order dated 08/12/2009 passed by the Judicial Magistrate, First Class, Vasco-da-Gama in Criminal Case No.1779/OA/NIA/06/B by which respondent no.1/accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). The appellant herein filed the above case against respondent no.1 for dishonour of cheque dated 25/09/2006 alleged to have been issued by respondent no.1/accused for an amount of Rs.4,50,000/-(Rupees four lakhs fifty thousand only). 3. In Criminal Case No.1779/OA/NIA/06/B, the complainant examined three witnesses namely PW1-Revard Pereira-brother and the constituted attorney holder of the complainant, PW2-Kishor Pednekar and PW3-Somappa Kollar. Thereafter, the statement of the accused under Section 313 of Cr.P.C., was recorded. The accused took a stand that he had not signed the cheque and as such, made an application for sending the cheque to handwriting expert to verify as to whether the signature on the cheque was that of the accused. After report was received by learned Magistrate, the complainant sought leave to examine Advocate Satishchandra Talaulikar, the Notary at Vasco-da-Gama before whom according to the complainant, an agreement dated 24/06/2006 between the complainant and the accused was executed. It is the case of the complainant that pursuant to said agreement, an amount of Rs.4,50,000/-was advanced by way of loan to the accused and the accused had issued post dated cheque dated 25/09/2006. 4. The application was rejected by learned Magistrate. However, the revisional Court reversed the order passed by learned Magistrate and consequently, allowed the application. Pursuant to the order passed by learned Additional Sessions Judge, Advocate Satishchandra Talaulikar was examined as PW4. 5. Thereafter, arguments of the parties were heard and by the impugned judgment and order, learned Magistrate acquitted the accused of the offence punishable under Section 138 of the Act. 6. Perusal of the record discloses that after the complainant was allowed to examine PW4-Advocate Satishchandra Talaulikar, his evidence was not put to the accused by recording his statement under Section 313 of Cr.P.C. 7. 6. Perusal of the record discloses that after the complainant was allowed to examine PW4-Advocate Satishchandra Talaulikar, his evidence was not put to the accused by recording his statement under Section 313 of Cr.P.C. 7. It is by now well settled by a catenta of decisions of the Apex Court that the evidence of prosecution witness cannot be used against the accused, if the same is not put to the accused in his statement under Section 313 of Cr.P.C. No doubt in case the incriminating evidence as deposed by the prosecution witness, is not put to the accused, the appellate Court is entitled to either put the incriminating circumstances to the accused or to his advocate and call upon either of them to offer explanation. (See Shivaji Sahebrao Bobade and another Vs. State of Maharashtra; AIR 1973 SC 2622 ). However, in the present case, the entire statement of PW4-Advocate Talaulikar which incriminates the accused, has not been put to the accused and, therefore, in my opinion, this is not a fit case in which this Court should undertake the exercise of putting incriminating circumstances deposed by PW4-Advocate Talaulikar to either the advocate appearing for the accused or to the accused. In such an eventuality, the only option available to this Court is to remand the matter to learned Magistrate with a direction to put the incriminating circumstances deposed by PW4-Advocate Talaulikar to the accused by recording his additional statement under Section 313 of Cr.P.C. and thereafter, permit the accused to lead further evidence, if he so desires. In my opinion, it would be just and proper to remand the matter to Magistrate to enable the Magistrate to put the incriminating circumstances to the accused by recording his additional statement under Section 313 of Cr.P.C. 8. In the result, therefore, the impugned judgment and order dated 08/12/2009 in Criminal Case No. 1779/OA/NIA/06/B passed by learned Judicial Magistrate, First Class, Vasco is quashed and set aside and the matter is remanded to learned Magistrate to record additional statement of the accused under Section 313 of Cr.P.C. Learned Magistrate shall put the incriminating circumstances as deposed by PW4Advocate Talaulikar to the accused. The accused shall be at liberty to lead defence evidence, if he so desires. Thereafter, learned Magistrate shall proceed to dispose of the case in accordance with law. 9. The accused shall be at liberty to lead defence evidence, if he so desires. Thereafter, learned Magistrate shall proceed to dispose of the case in accordance with law. 9. It is made clear that I have not expressed any opinion on the merits of the matter and all the contentions of the parties are kept open. 10. In the result, therefore, the appeal is partly allowed. The impugned judgment and order dated 08/12/2009 passed by learned Magistrate, is quashed and set aside and the matter is remanded to learned Magistrate, who shall proceed to dispose of the case in the light of the observations made above. The parties to appear before learned Magistrate on 21/11/2012 at 10 a.m. The bail bond executed by respondent no.1 stands discharged. Liberty to Magistrate to insist upon fresh bail bond, if he/she so desires. 11. The appeal stands disposed of accordingly.