Bombay High Court
Yogesh Madhukar Sonwane vs Ms Alka Haribhau Dhumal on 23 September, 2016
Bench: V.K. Jadhav
1 CRIMINAL APPLN
NO.3384.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3384 OF 2005
YOGESH MADHUKAR SONWANE
age 37 yrs, Occ. Business,
R/o Atithi Dining Hall,
Main Road, Shrirampur,
Dist. Ahmednagar. ..Applicant..
VERSUS
MS ALKA HARIBHAU DHUMAL
aged 42 yrs, Occ. Lecturer,
R/o 27, Shreyanagar, Aurangabad.
..Respondent..
...
Advocate for Applicant : Mr Ajinkya Kale h/f S B Talekar
...
CORAM : V.K. JADHAV, J.
Dated: September 23, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order dated 3.12.2005
passed below Exh.35 in SCC No.9038/2004, the
original accused has filed present criminal application.
2. Brief facts, giving rise to the present application
are as follows :-
Respondent has filed a complaint bearing SCC
No.9038/2004 before the Judicial Magistrate First
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NO.3384.2005.odt
Class, Aurangabad against the applicant-original
accused for having committed an offence punishable
under section 138 of the Negotiable Instruments Act. In
due course, the said SCC No. 9038/2004 was taken up
for hearing. Respondent-original complainant has
submitted her examination-in-chief in the form of
affidavit before the Magistrate and she was also
subjected to cross examination by the applicant-
accused. Thereafter, respondent-complainant has filed
an application Exh.35 stating therein that the demand
notice has not been exhibited.
The applicant accused has strongly resisted the
said application by filing his say wherein it has
contended that the respondent-complainant has filed
said application Exh.35 to fill up the lacuna and to
prolong the matter. Said application Exh.35 also
resisted on the ground that respondent-complainant did
not prove the contents of the notice as per the
provisions of the Indian Evidence Act. The learned
Judicial Magistrate First Class Court no.3 Aurangabad
by its impugned order passed below Exh.35 dated
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NO.3384.2005.odt
3.12.2005 allowed said application and accordingly
exhibited the said notice as exh.36. Hence, this
application.
3. The learned counsel for the applicant-accused
submits that, although a passing reference has been
made in paragraph no.4 of the affidavit of examination-
in-chief that, notice was issued to the accused on
13.10.2004 by courier which was served on the accused,
copy of the notice alleged to have been sent on
13.10.2004 was not filed or annexed alongwith an
affidavit. It has not mentioned as to on what date notice
has been sent by courier and served on accused.
Learned counsel submits that, Order 13 Rule 4 deals
with a endorsement on documents admitted in evidence
and when the witness proves any document, correct
exhibit number should be noted immediately on the
document itself by giving reference in the body of the
deposition against description of the said document.
Learned counsel submits that, copy of the notice alleged
to have been issued through courier on 13.10.2004 was
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NO.3384.2005.odt
not exhibited nor any exhibit number was written on
document. Learned counsel submits that, respondent-
complainant has failed to prove said notice and
therefore, at a later stage in order to fill up lacuna
application exh.35 came to be filed. Learned Magistrate
has erroneously allowed said application.
4.
Even though, notices were duly served on
respondent-original complainant on court motion, none
appears for her.
5. On careful perusal of the impugned order, it
appears that, in the affidavit of evidence Exh.32 in
paragraph no.4 it is mentioned to the effect that
"ultimately the notice was issued to the accused on
13.10.2004 through courier by name Avenues Courier,
Aurangabad which was served on the accused." The slip
of the service is annexed herewith. It be exhibited as
address of the accused is correct. On the backdrop of
this, the learned counsel for the applicant submits that,
contents of the demand notice of dishonour of cheque of
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NO.3384.2005.odt
the amount and signature of the counsel who has
issued said notice are not duly proved. According to the
learned counsel it cannot be said that, contents of the
office copy of the notice have been duly proved.
6. On perusal of the cross examination of the
respondent-complainant, the applicant-accused has
himself invited the respondent-complainant to explain
about the contents of the legal notice and accordingly in
paragraph no.4 of the cross-examination the
respondent-complainant has stated which is reproduced
herein below :-
"I had issued notice of this dishonour of
these cheques on 13.10.2004. Accused
received that notice dated 14.10.2004."
7. Furthermore, it has only suggested to respondent-
complainant in the cross examination that, he has not
issued notice to the applicant-accused within legal time.
It has no where suggested to the respondent-
complainant that no legal notice has been issued and
served on accused. Same is also evident from the
6 CRIMINAL APPLN
NO.3384.2005.odt
further cross examination where it is suggested to the
respondent-complainant that, complaint is not filed
within prescribed period of limitation. Said suggestion
is in continuation of the suggestion that respondent-
complainant has not issued notice to the accused within
legal time.
8.
In the light of the above discussion, it appears
that, the learned Magistrate has therefore rightly
exhibited the said legal notice. I am in agreement with
the Magistrate that in the light of the cross examination
as referred above, there is no likelihood of any prejudice
to be caused to the applicant/original accused.
9. In view of the above discussion, I do not find any
substance in the application. Because of the interim
relief granted in the year 2006 further proceedings in
SCC No.9038/2004 pending before the Magistrate are
stayed. Thus, certain directions for expeditious disposal
of the case requires to be given to the Magistrate.
Hence, I proceed to pass the following order.
7 CRIMINAL APPLN
NO.3384.2005.odt
ORDER
I. Criminal application is hereby
dismissed.
II. The applicant-accused shall appear
before the Judicial Magistrate First
Class, Aurangabad on 21.10.2016.
The learned Judicial Magistrate
ig First Class, Aurangabad shall issue
notice to respondent-complainant
about the date of hearing and
dispose off said S.C.C.
No.9038/2004 within SIX MONTHS
thereof.
III. Criminal application accordingly
disposed off. Rule discharged.
sd/-
( V.K. JADHAV, J. )
....
aaa/-
