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2018 DIGILAW 76 (BOM)

Subhash Mahadev Puri v. Praveen Digamber Petkar

2018-01-10

V.M.DESHPANDE

body2018
JUDGMENT V.M. Deshpande, J. (Oral) - Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel Shri M.N. Ali for the applicant and learned counsel Shri S.S. Shingane for the non applicant. 2. The present criminal application under section 482 of the Code of Criminal Procedure, 1973 is filed by the original complainant. He preferred proceedings against the non applicant for the offence punishable under section 138 of the Negotiable Instruments Act, 1881. The said case was registered as Criminal Case No.101 of 2008. Learned Magistrate, on 21.8.2009, recorded the finding of guilt against the non applicant and imposed jail punishment for 6 months and also directed that the non applicant shall pay Rs. 4.00 lacs by way of compensation. 3. Against the said judgment and order of conviction on 21.8.2009, the non applicant filed an appeal before the Appellate Court. The said appeal was registered as Criminal Appeal No.42 of 2009 and is pending on the file of learned Additional Sessions Judge at Achalpur. During the pendency of the said appeal, application Exhibit 29 was moved by the non applicant . The said application was moved under section 391 of the Code of Criminal Procedure, 1973. According to the said application, though the non applicant filed a reply to the statutory Notice issued against him by the applicant which is dated 15.1.2008, learned Magistrate has not considered the reply and has observed that the said Notice was not replied. Therefore, the application was required to be filed. 4. Learned Additional Sessions Judge, vide its order dated 3.9.2016, allowed the application filed on behalf of the non applicant and permitted the non applicant to adduce evidence before the Lower Appellate Court itself. Not only that, the Lower Appellate Court has ordered that the additional evidence shall be limited only to the extent of proving of contents of the reply Notice. The aforesaid order is being questioned before this Court. 5. Exhibit 21 is Notice issued by the applicant/original complainant to the non applicant and it is dated 15.1.2008. Exhibit 22 is acknowledgement showing the receipt of Notice Exhibit 21 by the non applicant . 6. During the course of hearing, learned counsel Shri M.N. Ali for the applicant has stated that the applicant/complainant has received the reply Notice issued by the non applicant which is dated 24.1.2008. 7. Exhibit 22 is acknowledgement showing the receipt of Notice Exhibit 21 by the non applicant . 6. During the course of hearing, learned counsel Shri M.N. Ali for the applicant has stated that the applicant/complainant has received the reply Notice issued by the non applicant which is dated 24.1.2008. 7. It is to be noted that even the said reply Notice is already filed on record by the applicant/complainant before the Trial Court itself vide list of documents Exhibit 53. 8. Learned counsel Shri M.N. Ali for the applicant, on the instructions from his client, states that the reply given by the non applicant can be read in evidence. Statement accepted. 9. In view of the aforesaid, there is no necessity of recording the additional evidence at the appellate stage as ordered by the Lower Appellate Court. The Lower Appellate Court, therefore, can give necessary exhibit number to the reply Notice. The Lower Appellate Court is, therefore, directed to decide the appeal in accordance with law after considering the reply Notice, which can be read in evidence. 10. With this, the criminal application is disposed of.