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2014 DIGILAW 1727 (BOM)

Global Exim v. State of Maharahtra

2014-08-04

REVATI MOHITE DERE

body2014
Judgment : 1. Rule. Rule made returnable forthwith, with the consent of the parties. Counsel for Respondents waive service of notice. 2. Heard learned counsel for the parties. 3. The applicant has impugned the order dated 25th April, 2014, passed by the learned Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai, below Exhibit -83 in C.C.No.2856/SS/2012. 4. Before adverting to the impugned order, it would be necessary to place on record the following facts :- It appears that an application was previously preferred by the respondent no.2 herein i.e. Stonemannn Royale Limited, before the learned Metropolitan Magistrate, Exhibit - 73 praying therein for calling an expert to examine the age of the ink in respect of the writing on the cheque. In the said application, Exhibit - 73, the respondents -accused had prayed that the Court should appoint a Forensic Expert to examine the age of the ink in respect of the subject cheque, exhibited by the complainant, being Cheque No.041245 drawn on IDBI Bank, purported to be issued by the accused in above proceedings and called for the report/opinion from the Forensic Expert. The learned Magistrate had observed that the dispute regarding the signature of drawer who had scribed the cheque, was not material and that the cheque being about 2 years old, the application was filed only to prolong the trial and accordingly, rejected the said application, being Exhibit - 73, vide order dated 6th February, 2014. Against the said order passed below Exhibit - 73, the Respondents -Accused filed a Writ Petition in this Court, being Writ Petition No.670 of 2014. This Court vide order dated 25th March, 2014 observed that the prayer clause was not properly drafted and that the Court was not empowered to appoint a Forensic Expert. Accordingly, the Counsel for the Respondents Accused withdrew the Criminal Writ Petition No.670 of 2014, with liberty to file a fresh application before the concerned Magistrate by making a specific prayer for sending the cheque to the Forensic Expert. It was observed in the said order that the learned Magistrate shall consider the said application on merits and decide the same within two weeks from the date of filing of the application. Accordingly, the Writ Petition was dismissed as withdrawn, with liberty as prayed for. It was observed in the said order that the learned Magistrate shall consider the said application on merits and decide the same within two weeks from the date of filing of the application. Accordingly, the Writ Petition was dismissed as withdrawn, with liberty as prayed for. Pursuant to the said order dated 25th March, 2014, passed by this Court in Criminal Writ Petition No.670 of 2014, the respondents -accused preferred a fresh application in the Court of learned Metropolitan Magistrate, Mazgaon, Mumbai and prayed that the cheque be sent to the Forensic Expert, for examination of the age of the ink of the entries on the cheque i.e. the signature of the drawer and the amount entered in words and figures in the said cheque and for calling of the report/opinion from the Forensic Expert. The said application was strongly resisted by the petitioner - original complainant herein by filing their say. The learned Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai, after hearing the parties was pleased to pass the impugned order dated 25th April, 2014, below Exhibit -83 in C.C.No.2856/SS/2012. Thus, vide the said order, the Trial Court allowed the application preferred by the Respondents - Accused. 5. Learned Counsel for the Petitioner contended that the learned Judge has not exercised the discretion vested in him, in the facts of the case. He submitted that although, this Court had permitted the respondents -accused to prefer a fresh application, the said application was to be decided in accordance with law. He submitted that there was no foundation laid by the respondents - accused for sending the cheque to the handwriting expert/forensic expert. He relied on a letter sent by the respondents -accused to the complainant, dated 22nd May, 2012. In the said letter (Exhibit - 29), the respondent -Jagat Chandulal Shah, Director of Stonemann Royale Limited, has specially stated as under:- "We do admit that we have issued the Cheque bearing No.041245 dated 21/3/2012, of Rs.1,64,00,000/- which was dishonored and we apologize the inconvenience caused to you. In the said letter (Exhibit - 29), the respondent -Jagat Chandulal Shah, Director of Stonemann Royale Limited, has specially stated as under:- "We do admit that we have issued the Cheque bearing No.041245 dated 21/3/2012, of Rs.1,64,00,000/- which was dishonored and we apologize the inconvenience caused to you. Due to our internal accounts department's miscommunication the cheque drawn on IDBI account was already freezed (closed) and hence the same was dishonored." The learned counsel for the petitioner also relied on the answers given to, by the Respondent Accused, annexure made under Section 313 of the Code of Criminal Procedure, which are as under :- "Q.11 It has further come in her evidence that complainant has presented the said cheque for encashment on 22.03.2012 with their bank was returned unpaid vide memo dated 27.03.2012 with remark "Account Freezed". What do you want to say about it? Ans. It is true. Q.12 It has further come in her evidence that statutory demand notice dtd.31.03.2012 issued by complainant duly served on you. What do you want to say about it? Ans. It is true. Q.13 It has further come in her evidence that inspite of demand notice, you failed to make payment of cheque amount. What do you want to say about it? Ans. It is true. Q.14 Why the witness is deposed against you? Ans. As agreement didn't work out." 6. He submitted that a perusal of the said letter dated 22nd May, 2012, shows that the cheque bearing no.041245 dated 21st March, 2012, issued for a sum of Rs.1,64,00,000/- which was dishonoured has been clearly admitted to by the respondents -accused. In addition to the aforesaid, learned counsel for the petitioner submits that it has come in the cross examination of the petitioner - original complainant that the 'The employee Mr.Amit S., of the complainant had informed me the complainant has received the cheque, Exhibit -22 on 20th March, 2012. Cheque vide Exhibit - 22 was already filed up with contents and it was brought to the office of the complainant' 7. He submits that even a perusal of the 313 statement of the respondent no.3- accused, in particular question nos.11, 12 and 13, will show that the cheque was issued and despite the demand notice, the respondents - accused had failed to make the payment of the cheque amount. He submits that even a perusal of the 313 statement of the respondent no.3- accused, in particular question nos.11, 12 and 13, will show that the cheque was issued and despite the demand notice, the respondents - accused had failed to make the payment of the cheque amount. Except question no.10, wherein the respondent no.3 -accused has stated that the cheque was blank but signed and was issued for security, a perusal of the rest of the questions reveals that despite statutory notice dated 31st March, 2012, the respondents -accused had failed to make the payment of the cheque amount. 8. The Respondent No.3- Jagat Shah has examined himself as defence witness no.1. In the examination in chief the respondent no.3-accused has stated that the cheque was blank and signed and was given as a security. However, in his cross examination, the respondent no.3 accused has admitted that he had received the demand notice, Exhibit -24 and that he had not replied to the said notice. He has also admitted that the letter, Exhibit - 29 bears his signature. 9. Considering the peculiar facts of the case and more particularly, the letter dated 22nd May, 2012, being Exhibit 29, wherein the respondent no.3-accused Jagat Shah, Director of Stonemann Royale Limited had admitted that he had issued the cheque bearing no.041245 dated 21st March, 2012, issued for a sum of Rs.1,64,00,000/, which was dishonoured, the cheque is not required to be sent to the Forensic Expert for examination. The application for sending the cheque is nothing but a ploy to delay the trial, which is at its fag end. 10. It appears that the 313 statement of the Respondent No.3 Accused have been recorded and the respondent no.3 - accused has examined himself and a bank witness as defence witnesses and now only arguments are left to be concluded. Considering that the trial is almost over, the trial court to decide the case, as expeditiously as possible. 11. Rule is made absolute in terms of prayer clause (a). The Petition is disposed of accordingly. 12. It is made clear, that the observations made herein are for the purpose of deciding the said petition and that the trial court to decide the case, on its own merits, in accordance with law, uninfluenced by the observations made herein. 13. Parties to act on the authenticated copy of this order.