Shri Pankaj S/O Eknath Bhand vs Santosh S/O Kashinath Mane And And
2016 Latest Caselaw 4698 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                       CRIMINAL WRIT PETITION NO. 1523 OF 2015



     Shri Pankaj s/o Eknath Bhand




                                                     
     Age 44 years, Occ. Agri and Business
     R/o. Satral, Po. Songaon
     Tq. Rahuri, District Ahmednagar                           ...Petitioner

                      versus




                                          
     1.       Santosh s/o Kashinath Mane
                             
              Age 28 years, Occ. Business,
              R/o. Agrewadi, Tq. Maisgaon,
              Tq. Rahuri, District Ahmednagar
                            
     2.       The State of Maharashtra                         ...Respondents

                                              ...
                      Advocate for Petitioners : Mr. Tanpure Govind D.
                      Advocate for Respondent No.1 : Mr. R.B. Temak
      


                      APP for Respondent No.2-State: Ms. R. P. Gour
                                             .....
   



                                                   CORAM : V. K. JADHAV, J.

DATED : 18th AUGUST, 2016

ORAL JUDGMENT:-

1. Rule. Rule returnable forthwith. By consent of learned

counsel for respective parties, heard finally.

2. Being aggrieved by the order passed by learned J.M.F.C.

Court No.3, Rahuri, district Ahmednagar, below Exh.27 in S.T.C. No.

196 of 2013, the original complainant has preferred this writ petition.

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3. Brief facts, giving rise to the present writ petition are as

follows:-

The petitioner-original complainant has filed complaint which is

registered as S.T.C. No. 196 of 2013 before the learned J.M.F.C.

Rahuri against the respondent accused for having committed

offence punishable under Section 138 of Negotiable Instruments Act.

On appearance of respondent-original accused, in due course, the

petitioner-original complainant has filed his affidavit of evidence and

on 16.5.2015 filed an application Exh.27 seeking permission to lead

secondary evidence in respect of the cheque, which is subject matter

of the complaint, on the ground that the petitioner-original

complainant lost the said cheque at the time of repairing of his

hardware shop. The respondent-accused has strongly resisted the

said application. The learned Magistrate, by its impugned order

dated 23.9.2015, rejected the said application. Hence, this writ

petition.

4. Learned counsel for the petitioner submits that at the time of

filing of compliant, the petitioner-original complainant has placed

original cheque before the Assistant Superintendent of the Court.

The said Office Superintendent has passed an endorsement about

verification of original cheque on the copy of cheque submitted

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alongwith the complaint. Thus, the existence of original cheque is

not disputed. Even after dishonour of cheque, when the petitioner-

original complainant has issued demand notice to the respondent-

accused, the respondent has not bothered to reply the said notice.

The respondent at any time before the court has not disputed

issuance of said cheque. Thus, the petitioner has proved existence

and issuance of said cheque in his favour by the respondent-original

accused. The petitioner had specifically mentioned in his application

Exh.27 that while repairing of his hardware shop was going on, the

said cheque was lost. The petitioner original complainant has

requested the court that verified copy of the said cheque be accepted

in evidence by granting permission to the petitioner to lead

secondary evidence in this regard. While opposing the said

application Exh.27, the respondent had not denied the existence and

issuance of the said cheque. Application Exh.27 is opposed only for

the sake of opposition. Even though the petitioner original

complainant has filed an affidavit of evidence on 19.7.2014 and on

that date as well as on 25.8.2014 and 10.11.2014, the case was

adjourned at the instance of the accused. Thereafter, on next two

dates, case was adjourned on account of ill health of the complainant

and thereafter on 16.5.2015 the petitioner original complainant has

filed application Exh.27 seeking permission to lead secondary

evidence in respect of cheque, which has been lost while repairing

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his hardware shop. Learned counsel submits that the original

complainant has complied with the provisions of Section 65 (c) of the

Evidence Act and the learned Magistrate ought to have allowed the

said application.

5. Learned counsel for the respondent-original accused submits

that the petitioner-original complainant has not complied with the

mandatory provisions of Section 65(c) of the Evidence Act.

ig The

petitioner original complainant has not filed his affidavit in support of

the contents in his application Exh.27. As per the condition laid down

in clause (c) of the Section 65 of Evidence Act, for any other reason,

if original has been destroyed or lost, the permission can be granted

to lead secondary evidence. However, such permission cannot be

granted if the original has been destroyed or lost out of default or

neglect on the part of party, who is seeking permission to lead

secondary evidence. In the case in hand, the petitioner original

complainant even has not filed any complaint in the police station

about the said cheque, which has been lost while repairing hardware

shop. At the time of filing of affidavit of examination in chief, the

petitioner original complainant was having in his possession the

original cheque and the same reflects from the contents of affidavit,

however, he has not filed original cheque on record. It is part of

record that the petitioner original complainant has not produced the

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said cheque within reasonable time before the court, as

contemplated under Section 65(e) of the Evidence Act. Learned

counsel submits that the Magistrate, has therefore, rightly rejected

the application Exh.27 and no interference is required in the said

order.

6. Learned counsel for the respondent, in support of his

submissions, places reliance on following judgments:-

I) J. Yashoda vs. K. Shobha Rani, reported in (2007) 5 SCC 730;

II) Om Health Centres Pvt. Ltd. and Anr. vs. Ratanshi Premji Charitable Trust & Ors, reported in 2015 (3) Mah.L.J. 954

III) Rajendra Prasad Bansal vs. Mukesh Kumar Jain, decided by Madhya Pradesh High Court on 11.09.2012 in

writ petition No. 4364 of 2012.

7. I have also heard learned A.P.P. for the respondent-State.

8. It is a part of record that, at the time of filing of complaint

before the Court, the petitioner original complainant has placed

before the Assistant Superintendent of the Court, the original cheque

and accordingly the Assistant Superintendent of the court has

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passed endorsement on the copy of said cheque as verified as per

the original. Furthermore, after dishonour of said cheque, the

petitioner original complainant has issued demand notice to the

respondent-original accused, who has not bothered to reply the

same. Even before the court, the respondent original accused has

not denied issuance of said cheque in favour of petitioner-original

complainant. Thus, the very existence and issuance of said cheque

is proved by the petitioner original complainant beyond doubt.

9. So far as the contents in application Exh.27 are concerned, the

petitioner original complainant has specifically stated in the said

application that he lost the said cheque when the work of repairing of

his hardware shop was going on. It is not the case that the theft has

been committed in the shop of petitioner. Had there been any theft in

his shop, the petitioner would have filed the complaint in the

concerned police station. There is no question of filing any complaint

before the police when the cheque is lost while repairs of hardware

shop was going on. It is also a matter of record that even after filing

of affidavit of examination in chief before the trial court, for one

reason or another, at the instance of the respondent-accused, the

said case was adjourned. It is true that, in the application Exh.27, the

petitioner has not given specific date as to when he lost the said

cheque. However, it appears from the record that said affidavit of

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evidence came to be filed before the court on 19.7.2014 and

application Exh.27 was filed before the trial court on 16.5.2015 i.e.

after 10 months from the date of filing of said affidavit of evidence.

10. Since the existence and issuance of said cheque is not

disputed by the respondent-original accused, I do not think that the

petitioner original complainant would be getting any benefit by filing

application Exh.27 seeking permission to lead secondary evidence in

respect of cheque which is subject matter of his case. Furthermore,

in the bank record, there can always be an entry of cheque deposited

with the bank for encashment and intimation given to the customer

about dishonour of said cheque. In the given set of circumstances, I

do not think that there is no compliance of mandatory provisions of

section 65(c) of the Evidence Act. In view of the above discussion, I

proceed to pass the following order:-

ORDER

I. Writ petition is hereby allowed.

II. The order dated 23.9.2015 passed by the learned

J.M.F.C. Court No.3, Rahuri, district Ahmednagar below

Exh.27 in S.T.C. No. 196 of 2013 is hereby quashed and

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set aside.

III. Application Exh.27 is hereby allowed in terms of its

prayer clauses.

IV. Writ petition is accordingly disposed of. Rule is made

absolute in the above terms.

                              ig                        ( V. K. JADHAV, J.)
                            
     rlj/