Bombay High Court
Ujjwal S/O Ramesh Gedam vs Narayan S/O Wasudeo Naidu And Anr on 13 July, 2016
Bench: I.K. Jain
1 apl269.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.269 OF 2013
Ujjwal s/o Ramesh Gedam,
aged about 27 years,
occupation : business,
r/o Shankar Nagar, Nagpur. ... Applicant
- Versus -
1) Narayan s/o Wasudeo Naidu,
aged about 33 years,
occupation : business,
r/o MB Textile (Saree Centre),
Tent Line, Mohan Nagar,
District Nagpur.
2) The State of Maharashtra. ... Non-applicants
-----------------
Shri V.D. Muley, Advocate for applicant.
Smt. A.R. Taiwade, Additional Public Prosecutor for non-
applicant no.2.
----------------
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 13, 2016
ORAL JUDGMENT :
Heard Shri Muley, learned Counsel for
applicant/original complainant. None for non-applicant
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no.1. Smt. Taiwade, learned Additional Public
Prosecutor is present for non-applicant no.2.
2) By this application under Section 482 of the
Code of Criminal Procedure, complainant has assailed
the orders dated 22/11/2012 and 11/1/2013 passed by
the learned Judicial Magistrate, First Class, Nagpur in
Summary Criminal Case No. 2794/2010.
3) The facts giving rise to the present application
may be stated in brief as under :
Applicant initiated proceedings under Section
138 of the Negotiable Instruments Act against non-
applicant no.1. It is the case of applicant that non-
applicant no.1 issued cheque dated 12/12/2009 for
Rs.2,10,000/- as he failed to comply with the
agreement dated 25/11/2008. The said cheque was
dishonoured. Legal notice was issued before filing
complaint. Non-applicant no.1 did not respond to the
notice. Then Summary Criminal Case No. 2794/2010
3 apl269.13
was filed against him.
4) Particulars of the accusations were explained
to accused/non-applicant no.1. Complainant examined
himself and two attesting witnesses. To prove memo of
drawee Bank signed by authorized signatory,
complainant sought permission to examine the
Manager of drawee Bank.
ig Witness summons was
issued in the name of Branch Manager, Bank of India,
Kingsway Branch, Nagpur. In response to the
summons, Computer Operator Mr. Harish Nilkanth
Khobragade attended the Court. In the course of his
evidence, original memo and statement of accounts
were referred to the witness. Trial Court refused to
exhibit the same for want of compliance under
Section 65-B of the Evidence Act, 1872.
5) Thereafter, on 21/12/2012, complainant
moved an application for issuing summons to the
Manager of Bank. In this application, he stated that
Clerk deputed on earlier occasion was not duly
4 apl269.13
authorized and so Manager has to remain present
personally with original ledger.
6) On hearing the parties, trial Court vide order
dated 11/1/2013 rejected the application. The said
order and the order of refusal to exhibit the documents
passed on 22/11/2012 are assailed in this application.
The learned Counsel for applicant submitted that he
would restrict the challenge to the later order passed
on 11/1/2013 and would not press the application in
respect of the order dated 22/11/2012. The order
dated 11/1/2013 reads as under :
"Read. Heard.
The concerned Bank witness was
summoned and the witness examined
below Exh.48 appears to be deputed by
him. But, while examining complainant
did not put any question as such.
Therefore, summoning of Branch
Manager again, that too with original
ledger account of accused would be
mockery of law. Hence, rejected."
7) It is significant to note that on previous
occasion, application was submitted to issue summons
5 apl269.13
to Branch Manager. On receipt of summons, Branch
Manager instead of personally remaining present,
deputed the Clerk. Memo and statements of Accounts
could not be admitted in evidence for want of
compliance of Section 65-B of Evidence Act.
8) Considering the nature of dispute between the
parties and since Branch Manager was an important
witness to prove memo and statement of accounts, this
Court finds that trial Court committed an error in
denying an opportunity to complainant and refusing to
issue witness summons to Branch Manager. The
impugned order thus calls for interference as it does
not sustain in law.
9) In the result -
(i) Criminal Application No.269/2013 is allowed.
(ii) Impugned order dated 11/01/2013 passed below
Exhibit 49 in Summary Criminal Case No. 2794/2010
by the trial Court is set aside.
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(iii) Rule is made absolute in terms of prayer
clause (ii) of the criminal application.
(iv) No costs.
JUDGE
khj
7 apl269.13
CERTIFICATE
I certify that this judgment/order uploaded is a true and
correct copy of original signed judgment/order.
Uploaded by :
ig Uploaded on :
Kamal H. Jeswani 16/07/2016
Private Secretary
