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2013 DIGILAW 2367 (BOM)

Sirkar & Sons v. Kushal Sawant

2013-11-21

U.V.BAKRE

body2013
Judgment : Heard Mr. Rodrigues, learned counsel appearing for the petitioner. 2. Rule. Notice was issued to the respondent intimating that the matter would be taken up for final hearing at the stage of admission and such notice has been duly served on him. But the respondent is absent. In the circumstances above, I do not deem it necessary to issue notice to respondent no.1 again after admission. 3. By this petition, the petitioner has prayed to quash and set aside the order dated 15/01/2013 passed by the Judicial Magistrate First Class “F” Court at Mapusa in Criminal Case No. 37/OA/2011/F. 4. The petitioner has filed a complaint against respondent no.1 for offence punishable under section 138 of the Negotiable Instruments Act, 1881, (“The Act”, for short), since the cheque issued by him for Rs.25,000/- (Rs. twenty five thousand only), towards purchase of a gold bracelet was dishonoured. After issuance of process, against the present respondent no.1, before the Learned Judicial Magistrate, First Class, substance of accusation was explained to him and the matter had reached the stage of evidence. At that stage, the petitioner filed an application for production of additional documents, namely, a Cash memo for Rs. 25,101/- (Rs. Twenty five thousand one hundred and one only) and registration certificate of establishment. The respondent no. 1 filed reply resisting the application. By the impugned order dated 15/1/2013, the Learned Judicial, First Class rejected the application. 5. In the impugned order, the Learned Magistrate has observed that the proceedings are at the stage of evidence and the petitioner had not produced the said documents at the time of filing of the complaint and that no provision of law has been shown to file such an application. Hence, the application came to be rejected. 6. The Learned Counsel appearing on behalf of the petitioner submitted that this is a summons trial case and that after explaining the substance of accusation, when the accused is not convicted, the procedure envisaged in Section 254 of Cr. P.C. is to be followed and that Section 254 (1) empowers the Magistrate to take all such evidence as may be produced in support of the prosecution. The Learned Counsel has also relied upon the judgment in the case of “Central Bureau of Investigation Vs. P.C. is to be followed and that Section 254 (1) empowers the Magistrate to take all such evidence as may be produced in support of the prosecution. The Learned Counsel has also relied upon the judgment in the case of “Central Bureau of Investigation Vs. R. S. Pai and Another” reported in AIR 2002 SC 1644 , wherein in a warrant triable case, leave was granted to produce additional documents after the filing of the charge sheet. 7. I have perused the material produced by the petitioner on record and I have also considered the submissions made by him and the documents sought to be produced. 8. As has been pointed out by the Learned Counsel for the petitioner insofar as the cash memo is concerned, there is already a mention about the same in the statutory notice sent by the petitioner to respondent no.1 under section 138 (b) of The Act, which notice was already produced on record. The next document which the petitioner wanted to produce is the registration certificate of establishment, which is a public document, the genuineness for which cannot be disputed. 9. Be that as it may, as has been rightly submitted by the Learned Counsel for the petitioner, the case is a summons triable case, in which, in terms of Section 251 of Cr. P. C., substance of accusation was explained to respondent no.1 and since he had pleaded not guilty and was not convicted of the offence, the matter was at the stage of evidence. Section 254 (1) of Cr. P. C. provides as under: “(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.” 10. Therefore, there is a provision for production of documents in support of the case at the stage of evidence. In the case of “Central Bureau of Investigation Vs. R.S. Pai and Another”, (supra), the Hon'ble Supreme Court has held thus: “7. From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. In the case of “Central Bureau of Investigation Vs. R.S. Pai and Another”, (supra), the Hon'ble Supreme Court has held thus: “7. From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or chargesheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh [(1958) SCR 283 at 293] and it was held that the word 'shall' occurring in sub-section 4 of Section 173 and sub-section 3 of Section 207A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there can not be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.” 11. In view of the above, the impugned order is unsustainable and liable to be quashed and set aside. The petitioner is entitled to produce the said documents. 12. In the result, the petition is allowed. In such cases, there can not be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.” 11. In view of the above, the impugned order is unsustainable and liable to be quashed and set aside. The petitioner is entitled to produce the said documents. 12. In the result, the petition is allowed. (a) The impugned order dated 15/1/2013 passed by the Learned Judicial Magistrate First Class “F' Court in Criminal Case No. 37/OA/2011/F is quashed and set aside. (b) The application dated 9/10/2012 filed by the petitioner before the Trial Magistrate for production of the said additional documents is allowed. (c) The parties to appear before the Learned Magistrate, First Class, Mapusa on 4/12/2013 at 10 a.m.. 13. Rule is made absolute in the aforesaid terms. 14. The petition stands disposed of accordingly.