Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 2279 (BOM)

Sudam Panduji Ingle v. State of Maharashtra

2015-10-05

V.M.DESHPANDE

body2015
JUDGMENT V.M. Deshpande, J. 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. I have heard Shri M.P. Kariya, learned counsel for the petitioner, Shri Bhoyar, learned APR for the State and Shri P.S. Patil, learned counsel for respondents 2 to 4 in extenso. 2. By the present petition, the petitioner is challenging the judgment and order passed by the learned Sessions Judge, Amravati, in Criminal Appeal No. 157/11 dated 21.12.2013 together with the order passed by learned 3rd Joint Civil Judge, Sr. Dn., Amravati dated 21.9.2011 below Ex. 120 in Special Civil Suit No. 212 of 2003, by which the learned Civil Judge, Sr. Dn., rejected the application filed on behalf of the petitioner under Section 340 of Code of Criminal Procedure. 3. According to petitioner, he was required to file an application under Section 340 of Code of Criminal Procedure for taking cognizance in relation to manipulation of record and tampering of the cross-examination conducted on 21.6.2007 of respondent No. 4 Rahul Punjabrao Deshmukh, who is D.W. 1 in Special Civil Suit No. 212 of 2003. It is the case of the petitioner, who is the plaintiff, that while examining the record of Special Civil Suit No. 212/03 for advancing final arguments, it came to his notice that the cross-examination of D.W. 1 Rahul Deshmukh conducted by Advocate M.K. Jahagirdar on 21.7.2007 is missing from the record. It is the case of the petitioner that the cross-examination of said witness is intentionally removed from the record so as to defeat the interest of the plaintiff. 4. Affidavit of Advocate Jahagirdar was placed on record. The learned Joint Civil Judge, Sr. Dn., noticed that it is mentioned in the Roznama of the said civil suit that cross-examination of D.W. 1 Rahul Deshmukh is recorded on 21.7.2007. Later on, the Judge also noticed that the cross-examination of the said witness began on 04.8.2007 and it was completed on the very same day and the document Ex. 82 was proved on 04.8.2007. However, in the Roznama dated 21.7.2007 the said document is shown to be proved on the said date under Ex. 82. Upon this, the learned Judge allowed the application for making preliminary enquiry on 30.6.2011. 5. The enquiry was conducted by the said learned Judge. During enquiry he recorded statements of complainant, who is present petitioner and his counsel Shri M.K. Jahagirdar. 82. Upon this, the learned Judge allowed the application for making preliminary enquiry on 30.6.2011. 5. The enquiry was conducted by the said learned Judge. During enquiry he recorded statements of complainant, who is present petitioner and his counsel Shri M.K. Jahagirdar. He also recorded the statement of concerned clerks who were custodian of the record of Special Civil Suit No. 212/03 from time to time. He also recorded statements of Shri R.S. Thakur, Junior Clerk, P.S. Chore, Senior Clerk, D.N. Rangari, Senior Clerk and Shri A.V. Deshpande, Sr. Clerk. The statement of the complainant would show that on 21.7.2007 his counsel Shri Jahagirdar conducted cross-examination of D.W. 1 Rahul Deshmukh. However, the same is not finding place on record. According to him, the said cross-examination of said Rahul Deshmukh was very important as several facts were brought on record through cross-examination of D.W. 1 Rahul, such as his education, birth date, place of residence, his body identification and other facts. 6. Statement of Advocate Jahagirdar was also recorded. As per his statement, he conducted the cross-examination on 21.7.2007. Statement of Advocate Jahagirdar further shows that the cross-examination of D.W. 1 Rahul was recorded by the senior clerk, Shri A.V. Deshpande, under the dictation of Shri Bhavthankar, the then Presiding Officer. 7. Statement of Shri A.V. Deshpande, Senior Clerk, shows that on 21.7.2007 he was posted as Bench Clerk in the Court of Joint Civil Judge, Senior Division. As per his statement, on 21.7.2007 the plaintiff/petitioner filed documents Ex. 81, Ex. 81-A and Ex. 82 and the same were duly recorded in the Roznama of 21.7.2007. However, the said Senior Clerk has stated that on 21.7.2007 evidence or cross-examination of D.W. 1 Rahul was not recorded and due to his mistake it is mentioned in the Roznama dated 21.7.2007 that the cross-examination of D.W. 1 Rahul is recorded. According to him, the cross-examination was conducted only on 04.8.2007. 8. The impugned order of the learned Civil Judge, Sr. Dn., shows that on 20.3.2007 under the dictation of the Presiding Judge, Shri A.V. Deshpande, Senior Clerk, recorded further examination-in-chief and thereafter on 4.8.2011 cross-examination of D.W. 1 Rahul was recorded by the said clerk. He has also admitted that the Roznama dated 21.7.2007 was written by him and it is mentioned in the said Roznama of 21.7.2007 that the cross-examination of D.W. 1 Rahul is recorded. 9. He has also admitted that the Roznama dated 21.7.2007 was written by him and it is mentioned in the said Roznama of 21.7.2007 that the cross-examination of D.W. 1 Rahul is recorded. 9. It will be worth to mention here that the said suit was decided and thereafter the matter reached to this Court. This Court remanded the matter with a direction to decide the same afresh after hearing final arguments of both the parties. Though nothing is placed on record by either of the parties, it is mentioned in paragraph 9 of the order passed by the learned Joint Civil Judge, Sr. Dn., that after remand this Court did not grant any opportunity to lead any kind of evidence as the matter was to be decided after hearing final arguments of both the parties. 10. It is not in dispute that prior to remand, the notes of arguments were filed on recorded by the petitioner. Those notes of arguments are at Ex. 106. The learned Judge of the trial Court appears to have taken pains to go through the said notes of arguments and noticed that at page No. 5 thereof the relevant admissions of D.W. 1 Rahul Deshmukh are discussed by the learned counsel for the petitioner/plaintiff. It is pertinent to note that at that time no grievance was raised by the plaintiff about the cross-examination dated 21.7.2007 allegedly conducted by the counsel for the petitioner. The learned Judge also noticed, on the basis of the record, that on 20.3.2007 the further examination-in-chief of D.W. 1 Rahul was recorded and the cross-examination was deferred till next date. At page No. 6 of evidence of D.W. 1 Rahul there is an endorsement of the then Presiding Judge and at page No. 7 the evidence of D.W. 1 Rahul shows that his cross-examination was recorded on 4.8.2007. Therefore, it appears that after the remand from this Court, on the basis of a reference in the Roznama dated 21.7.2007 the plaintiff/petitioner is trying to suggest that the entire record is tampered with. 11. However, it is to be noted that if really the cross-examination of D.W. 1 Rahul was recorded on 21.7.2007 then it would have found place in the nature of comments of learned counsel for the petitioner in the notes of arguments (Ex. 106). 11. However, it is to be noted that if really the cross-examination of D.W. 1 Rahul was recorded on 21.7.2007 then it would have found place in the nature of comments of learned counsel for the petitioner in the notes of arguments (Ex. 106). Therefore, the learned Judge of the trial Court, in my view, has rightly rejected the application that on the basis of negligence of said Bench Clerk, one cannot reach to the conclusion that there is manipulation or tampering of the court record. Therefore, the application was rejected on 21.9.2011. Appeal was carried against the aforesaid order and the learned appellate Court, namely Sessions Judge, Amravati, has concurred with the finding recorded by the learned 3rd Joint Civil Judge, Sr. Dn., Amravati. 12. The present writ petition questions the recording of concurrent findings of facts. Nothing could be pointed out before this Court during the course of arguments by Advocate Kariya that both the orders suffer from any material irregularity. The learned counsel was unable to point out any mistake apparent on the face of the record. In that view of the matter, I see no reason to disturb the finding of facts recorded by the courts below with the reasoned order. Before parting with the present case, this Court observes that the Presiding Officers should be more vigilant before signing the Roznama of the case placed before them. It is expected from the Presiding Officers to vouch the Roznama since the Roznama is the mirror of the happening of the events in a case of a particular date. The Presiding Officers should not merely rely on the notings in the Roznama by the Bench Clerk. With these observations, the writ petition stands dismissed. Rule discharged.