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Jharkhand High Court · body

2019 DIGILAW 1818 (JHR)

Ghanshyam Mehta v. State of Jharkhand

2019-11-05

ANANDA SEN

body2019
JUDGMENT : Ananda Sen, J.: 1. The petitioner has prayed for quashing the order dated 08.06.2018 passed by learned Judicial Magistrate, 1st Class, Hazaribag, by which application under section 311 of the Code of Criminal procedure, filed by this petitioner, has been dismissed. He also challenged the order dated 03.08.2018 passed in Cr. Rev. No. 79 of 2018 by the Sessions Judge, Hazaribagh by which the petition challenging the order dated 08.06.2018 passed by the J.M., 1st Class, Hazaribagh, has also been dismissed. 2. Learned counsel for the petitioner submits that he had filed an application under section 311 of Cr.P.C. to call the Senior Manager Allahabad Bank, Hazaribagh to prove the fact that this petitioner had already given instruction to the Bank to stop payment of the disputed cheque, which was dishonoured on the ground of insufficiency of fund. He submits that he had already issued an instruction for stopping the payment of cheque, therefore, no proceeding could have been initiated under section 138 of the Negotiable Instrument Act. He submits that by way of defence he has to bring on record the certificates for stopping the payment of cheque. It is submitted that is necessary to call the Sr. Manager of the Allahabad Bank to prove all these documents which is in custody of the bank. Thus, the petitioner has filed the application under section 311 of the Cr.P.C. 3. Learned A.P.P. submits that no ground has been made which satisfy the court to entertain the application under section 311 of Cr.P.C. He further submits that from perusal of the order dated 08.06.2018 passed by the Judicial Magistrate, 1st Class, Hazaribagh, one can come to the conclusion that a similar type of application was earlier filed on 16.09.2017 to mark the said documents as exhibit which was rejected on 18.09.2017. He submits that only to linger the case, similar type of application has been filed on 22.09.2017 under section 311 Cr.P.C. He submits that since the order dated 08.06.2018 passed by the Judicial Magistrate, 1st Class, Hazaribagh has rightly been rejected, and upheld by the Sessions Judge, this application is not maintainable. 4. Heard the parties. 5. The application filed under section 311 of Cr.P.C. was dismissed by the Judicial Magistrate, 1st Class, Hazaribagh. The petitioner is facing trial for offence punishable under section 138 of Negotiable Instrument Act. 4. Heard the parties. 5. The application filed under section 311 of Cr.P.C. was dismissed by the Judicial Magistrate, 1st Class, Hazaribagh. The petitioner is facing trial for offence punishable under section 138 of Negotiable Instrument Act. The allegation is that the cheque issued by the petitioner was dishonoured due to insufficiency of fund. The petitioner has claimed that he has already instructed the Bank to stop payment of aforesaid cheque and those documents should be exhibited. 6. I find that the petitioner wants to bring on record the said documents by which he has given instruction to the Bank to stop payment. From the order passed by the Magistrate, I find that the similar application to mark the said documents as exhibits filed way back in 16.09.2017 was already dismissed on 18.09.2017. A subsequent application was filed under section 311 of Cr.P.C. more or less is for the same cause. Further, even if it is admitted that an instruction for stopping the payment of the cheque was given, the same also attracts the provisions of section 138 of the Negotiable Instrument Act. Thus no purpose will be served to call the Bank Manager by invoking section 311 of Cr.P.C. 7. Thus, I find that there is no merit in the application, the same is rejected. The trial court is directed to proceed and conclude the trial of the petitioner.