Bombay High Court
Ramrao S/O Dharmaji Shingatwar vs Laxman S/O Kamaji Jadhav on 21 June, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1521 OF 2015
WITH
CRIMINAL WRIT PETITION NO.1522 OF 2015
Ramrao S/o Dharmaji Shingatwar,
Age-78 years, Occu-Retired,
R/o Near Mahadeo Mandir,
Mukhed, Tq. Mukhed, Dist.Nanded PETITIONER
VERSUS
1. Laxman S/o Kamaji Jadhav,
Age-31 years, Occu-Agri. and Business,
R/o Umardari, Tq. Mukhed,
Dist.Nanded,
2. The State of Maharashtra, RESPONDENTS
Mr.U.B.Bilolikar, Advocate for the petitioner.
Mr.P.P.Uttarwar, Advocate for respondent No.1.
Mr.S.G.Karlekar, APP for respondent No.2.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 21/06/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the order dated 26/10/2015
below application Exh.40 in SCC No.217/2012 and the order dated
26/10/2015 below applications Exh.35 and 37 in the same
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proceedings. By the impugned orders, the petitioner has been
precluded from producing a document and from examining a witness
to prove the said document.
3. I have heard the learned Advocates for the respective sides for
quite some time and have gone through the petition paper book with
their assistance.
4. Summary criminal complaint is with regard to Section 138 of
the N.I.Act. The petitioner had closed his evidence on 20/12/2014.
At the stage of recording the defence evidence and when the accused
has still not closed his evidence, the petitioner filed the applications
Exh.35 and 37 for producing a document and Exh.40 for examining a
witness to prove the said document.
5. The Trial Court has rejected these applications only on the
ground that the statement of the accused has been recorded u/s 313
of the Cr.P.C. and hence the petitioner cannot be permitted to lead
further evidence.
6. It emerges from the submissions of the learned Advocates that
the cheque was issued by the accused posing to be the Proprietor of a
khs/JUNE 2016/1521-d
Firm. The accused in his statement u/s 313 of the Cr.P.C. has taken
a stand that he was not the Proprietor. The petitioner, therefore,
thought it fit to produce the certificate of registration of the firm
available as per the records under the Shops and Establishments
Act. It is mandated that the registration of a shop, by which the shop
owner is given a shop license, necessarily should reflect the
Proprietor of the shop/firm with his complete address. The said
document could be the best piece of evidence to prove that the
accused was the owner of the shop/firm.
7. It is apparent that the Trial Court has passed the impugned
orders only for the reason that the statement of the accused was
recorded u/s 313 of the Cr.P.C. It is quite evident that the learned
Magistrate has not considered the effect of Section 311 of the Cr.P.C.
which reads as under :-
"Section 311 of the Cr.P.C. : - 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
khs/JUNE 2016/1521-d
the case."
8. I find it quite obvious that if a pedantic view is taken, the fact
of the accused being the owner of the shop/firm and having issued
the cheque in the said capacity, would not be proved thereby
damaging the case of the petitioner. As such, on technicalities, the
trial would suffer and it would be under fortuitous circumstances
that the accused would be successful in the said litigation.
9. Considering the lapse on the part of the petitioner, in my view
the learned Magistrate could have exercised its jurisdiction u/s 311
and could have imposed costs upon the petitioner so as to reduce the
rigours of the litigation being suffered by the respondent.
10. I am unable to accept the submissions of the respondents, that
once the stage of recording evidence of the petitioner is over and after
the statement of the accused is recorded u/s 313 of the Cr.P.C., the
petitioner is precluded from leading any evidence. The said
submission would run counter to Section 311 of the Cr.P.C.
11. In the light of the above, both these petitions are allowed. Both
the orders dated 26/10/2015 are quashed and set aside and
khs/JUNE 2016/1521-d
application Exh.35 and 40 are allowed.
12. Needless to state, the documents sought to be proved, can be
exhibited only after the procedure under the Evidence Act is followed
for proving a document. Thereafter it could be exhibited. As such,
application Exh.37 stands disposed of.
13.
The petitioner shall pay costs of Rs.2,500/- to the respondents
by depositing the same before the learned J.M.F.C. Mukhed in SCC
No.217/2012 within a period of 4 (four) weeks from today. Upon
depositing of costs, the respondents herein shall be at liberty to
withdraw the said amount without any conditions.
14. Rule is made absolute in the above terms. Parties to act on the
print out copy of this judgment obtained from the Official Website of
this Court.
( RAVINDRA V. GHUGE, J.)
khs/JUNE 2016/1521-d
