Bombay High Court
Kiran S/O Rameshlal Bhandari vs Narayan S/O Purshottam Sarda on 7 July, 2016
Bench: S.S. Jadhav
(1) Cri. Appln. No. 3138 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 3138 of 2016
District : Aurangabad
Kiran s/o. Rameshlal Bhandari,
Age : 32 years,
Occupation : Business,
R/o. 7, Madan Niwas,
Swarsangam Housing Society,
Sherya Nagar, .. Applicant
Aurangabad. (Original complainant)
versus
Narayan s/o. Purshottam Sarda,
Age : 40 years,
Occupation : Business,
R/o. Mahesh Apartment,
B-3, B-Wing,
Behind Mahesh Auto, .. Respondent
Adalat Road, Aurangabad. (Original accused)
............
Mr. Shyam C. Arora, Advocate, for the applicant.
Mr. Rajendra S. Deshmukh, Advocate, for the
respondent.
............
CORAM : Smt. SADHANA S. JADHAV, J.
DATE : 7TH JULY 2016
ORAL JUDGMENT:
Heard the learned Counsel for the applicant
and the learned Counsel for the respondent.
(2) Cri. Appln. No. 3138 of 2016
2. Rule. Rule made returnable forthwith with
the consent of the parties.
3. The applicant herein questions the
correctness and validity of the order dated 31st
March 2016, passed by the Judicial Magistrate (F.C.),
Court No.5, Aurangabad, in S.C.C. No. 5638/2013.
4. In nutshell, facts of the case are as
follows :-
The applicant herein, after issuing statutory
notice under Section 138 of the Negotiable
Instruments Act, 1881, had filed a complaint before
the Judicial Magistrate (F.C.), Aurangabad, alleging
therein that the complainant had given a hand loan to
the accused / respondent, by way of cheque amounting
to Rs. 15,00,000/- on 12.05.2013. The cheque was
drawn on Kotak Bank, in favour of Kapilkumar &
Company, a Firm belonging to the accused. The cheque
was dishonoured. The complainant issued a statutory
notice to the accused. The accused / respondent had
not replied the statutory notice and hence the
applicant / complainant was constrained to file a
complaint alleging that the respondent has committed
an offence punishable under Section 138 of the
Negotiable Instruments Act.
(3) Cri. Appln. No. 3138 of 2016
5. The applicant had filed his affidavit on
evidence. At the trial, the accused had chosen to
examine himself on oath. Hence, he was examined as
defence witness no.1. In the course of cross
examination, the accused had specifically stated on
oath, that he is in no way concerned with Kapilkumar
& Company. It was in these circumstances, that the
complainant was constrained to file an application
under Section 311 of the Code of Criminal Procedure,
1973 [For short, "Cr.P.C."], for calling upon the
Branch Manager of Malkapur Urban Co-operative Bank
Ltd., Malkapur, Branch at Station Road, Aurangabad,
to be examined as a witness. The whole endeavour of
the complainant was to demonstrate before the Court
that the cheque was in favour of Kapilkumar &
Company, a Firm belonging to the accused. Since the
accused has denied, in totality, any concern with the
said Firm, there was no other alternative but to call
upon the Branch Manager of the Bank to substantiate
his contention.
6. The learned Counsel for the respondent
vehemently submits that, in fact, it was incumbent
upon the complainant to be diligent with the
proceedings which he has initiated. That, the Branch
Manager of Malkapur Urban Co-operative Bank Ltd.,
Branch at Aurangabad, was not cited as a witness by
the complainant. It was at the stage of final
arguments of the case i.e. even after statement of
(4) Cri. Appln. No. 3138 of 2016
the accused was recorded under Section 313 of the
Cr.P.C., the said application under Section 311 of
the Cr.P.C. was filed and hence, according to the
learned Counsel for the respondent, the learned
Magistrate was justified in rejecting the said
application.
7. Section 311 of the Cr.P.C. contemplates as
follows :-
" Power to summon material witness, or
examine person present. -- Any Court may, at
any stage of any inquiry, trial or other
proceeding under this Code, summon any person
as a witness, or examine any person in
attendance, though not summoned as a witness,
or recall and re-examine any person already
examined; and the Court shall summon and
examine or recall and re-examine any such
person if his evidence appears to it to be
essential to the just decision of the case."
8. In fact, in the facts of the present case,
it was incumbent upon the complainant to call the
Branch Manager of the Bank to be examined as a court
witness, only in order to substantiate his contention
that the cheque issued by him was drawn in favour of
Kapilkumar & Company, a Firm belonging to the
accused. The said application ought to have been
considered in the interest of justice. Diligence
apart, it is also necessary to see that the court
(5) Cri. Appln. No. 3138 of 2016
cannot be a silent spectator to the proceedings and
allow any of the parties to leave any loopholes as
the administration of justice would be of paramount
importance. In that view of the matter, the
Application deserves to be allowed.
9. The Application is accordingly allowed.
(a) The order dated 31st March 2016, passed by the
Judicial Magistrate (F.C.), Court No.5, Aurangabad,
below Exhibit 41 in S.C.C. No. 5638/2013, is quashed
and set aside. The application Exhibit 41 stands
allowed.
(b) The learned Magistrate shall issue summons to the
Branch Manager of Malkapur Urban Co-operative Bank
Ltd., Malkapur, Branch at Station Road, Aurangabad,
and record the evidence in accordance with law.
(c) The Application stands disposed of. Rule is made
absolute in the above terms.
( Smt. SADHANA S. JADHAV )
JUDGE
..........
puranik / CRIAPPLN3138.16
