appa963.17.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.963 O
F 2017
IN
CRIMINAL APPEAL NO.346 OF 2014
Govind s/o Parasram Angwani,
Aged about 45 years,
R/o Sindhi Colony, Power House,
Tumsar (P.S. Tumsar),
Dist. Bhandara. ....... APPELLANT
...V E R S U S...
1] Shri Jagdish s/o Khushal Wairagade,
Aged Major, Occupation: Business,
R/o Nehru-Vivekanand Nagar,
Tumsar (P.S. Tumsar), Dist. Bhandara.
2] State of Maharashtra,
Through G.P., Nagpur. ....... RESPONDENT S
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Shri Krishna S. Motwani, Advocate for Appellant.
Shri Mahesh Rai, Advocate for Respondent No.1.
Shri Ashish Kadukar, APP for Respondent No.2.
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CORAM: ROHIT B. DEO , J.
DATE: th
17 NOVEMBER,
201
7 .
ORAL JUDGMENT
1] The appellant, who is the original complainant
Govind Parasram Angwani, seeks permission to adduce further evidence. The application is moved invoking powers under section ::: Uploaded on - 17/11/2017 ::: Downloaded on - 19/11/2017 01:43:43 ::: appa963.17.J.odt 2 391 of the Criminal Procedure Code.
2] The only ground on which the learned Magistrate has dismissed the complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") is that the complainant, although produced on record the photo copy of the return memo issued by the State Bank of India evidencing the dishonour of cheque, did not prove the said return memo by producing the original record on record or by adducing secondary evidence. The learned Magistrate, having recorded the said finding, has not dealt with any other issue arising in the complaint.
3] The respondent-accused has not filed any reply in opposition to Criminal Application 963/2017.
Paragraphs 3 and 4 of the application read thus:
3) That the appellant with due respect submits that, the complaint was came to be filed in the year 2007 with the necessary documents including the cheque return memo issued by the banker of the accused. However, it is usual trend that the photo copies are placed on record and at the time of evidence only the originals are being filed. The applicant followed the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 19/11/2017 01:43:43 ::: appa963.17.J.odt 3 same trend and filed originals only when the evidence started. However, inadvertently original return memo issued by the bankers of the accused is not placed on record, which resulted acquittal of the respondent/accused. Otherwise the accused was not able to rebut the presumption under section 139 and 118 of the Negotiable Instruments Act. Only because of inadvertence on the part of the lawyer, the complainant could not produce the original cheque return memo and could not recover his hard earned money of Rs.50,000/-.
4) That the Appellant submits that he approached the Hon'ble Court with absolutely clean hands and proved all the documents and brought all the facts before the Hon'ble Court, in compliance of the provisions of law. It is submitted that the provisions of Section 139 and 146 carves a presumption in favour of the holder and the burden of proof is on the Accused/Respondent to disprove the same. However only because of aforesaid mistake, the adverse order/judgment is passed. The above mistake is only inadvertent act on the part of a common man which can be rectified by adducing further evidence to prove the aforesaid document. Therefore, the applicant seeks permission to adduce further evidence to the extent of only the return memo of the banker of the accused.
4] It is trite law, that for the mistake of the counsel, the litigant should not ordinarily suffer.
I am therefore, inclined to allow the application.
5] However, the applicant-appellant must be saddled with costs, to compensate the accused. The complainant to deposit ::: Uploaded on - 17/11/2017 ::: Downloaded on - 19/11/2017 01:43:43 ::: appa963.17.J.odt 4 Rs.5000/- in the Trial Court as costs which may be withdrawn by the respondent-accused.
6] The Criminal Application 963/2017 is allowed.
The learned Magistrate is directed to permit the complainant to adduce additional evidence to prove the return memo. It is made clear, that the accused shall be at liberty to adduce such evidence in rebuttal, and even otherwise, as the accused may deem fit.
7] The learned Magistrate is directed to decide every issue arising in the complaint afresh.
With these directions, the appeal is disposed of.
8] The appellant-complainant and the respondent-
accused, through their counsels appearing in this Court, undertake to appear before the learned Magistrate on 02.12.2017 and to abide by further orders of the learned Magistrate.
The appeal is disposed of accordingly.
JUDGE NSN ::: Uploaded on - 17/11/2017 ::: Downloaded on - 19/11/2017 01:43:43 :::