Bombay High Court
Navjeevan Infra Space Pvt. Ltd. ... vs Gopal Dineshchandra Tulshan Thr. ... on 14 December, 2017
Bench: R.P. Mohite-Dere
WP 895/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 895/2017
1. Navjeevan Infra Space Pvt.Ltd.,
through is Director Shri Simranjeetsingh
Jaspalsingh Nagra,
aged years, occupation business,
resident of In front of Hotel Jasnagra,
near railway station, Ramdaspeth, Akola.
2. Shri Simranjeetsingh Jaspalsingh Nagra,
aged, resident of Near Hedgewar Blood Bank,
Jatharpeth, Akola.
3. Vinit Rajesh Shah,
resident of c/o Ashok Medical Stores,
near Toshniwal Dharamshala,
Gandhi Road, Akola. PETITIONERS
.....VERSUS.....
Gopal Dineshchandra Tulshan,
Aged about 45 years, Occupation Business,
Through his POA Holder Dineshchandra
Deepchandra Tulshan,
73 yrs, Advocate, R/o New Radhakisan Plot,
Besides Maheshwari Bhavan, Akola,
Tq. & Dist. Akola. RESPONDE
NT
Mr. J.J. Chandurkar, counsel for the petitioners.
Mr. C.A. Joshi, counsel for the respondent.
CORAM : REVATI MOHITE DERE, J.
DATE : 14 TH DECEMBER, 2017.
P.C.
Heard learned counsel for the parties. Rule is made
returnable forthwith with the consent of learned counsel for the parties
and the petition is taken up for final disposal.
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WP 895/17 2 Judgment
2. By this petition, the petitioners have impugned the order
dated 14.08.2017 passed by the learned Judicial Magistrate First Class,
Court No.11, Akola below Exhibit 54 in Summary Criminal Case
No.2212/2015 by which their application, i.e. Exhibit 54 for de-exhibiting
the documents, i.e. Exhibits 47 to 51 came to be rejected.
3. Learned counsel for the petitioners submitted that the learned
Magistrate had erred in law by exhibiting the documents on 06.07.2017,
in the absence of the petitioners' advocate, and more particularly, when
the application for adjournment (Exhibit 52) on the ground of non-
availability of their advocate was allowed. He submitted that the person
who was examined by the respondent was a broker and not the
complainant and as such the said witness was not competent to produce
the documents in question. He further submitted that the petitioners had
filed an application, i.e. Exhibit 52, on 06.07.2017 for adjourning the
matter due to non-availability of their advocate in the morning session
itself, before the further examination-in-chief of the witness commenced.
He submitted that certain documents came to be exhibited without giving
the petitioners an opportunity to raise objection vis-a-vis exhibition of
documents. He, therefore, submitted that in the facts and circumstances
of this case, the learned Magistrate had erred in law by rejecting the
application filed by the petitioners for de-exhibiting the documents, i.e.
Documents at Exhibits 47 to 51.
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WP 895/17 3 Judgment
4. Learned counsel for the respondent opposed the petition. He
submitted that no interference was warranted in the impugned order
dated 14.08.2017. He submitted that after the examination-in-chief of
witness Vinod was recorded, the petitioners preferred an application
(Exhibit 52) and sought adjournment and as such there was no infirmity
in the order.
5. Perused the papers as well as the impugned order.
It appears that an adjournment application was preferred by the
petitioners on 06.07.2017 on the ground that their advocates were not
available. Admittedly, the said application (Exhibit 52) seeking
adjournment was allowed by the learned Magistrate. It also appears
that on the very same day, i.e. on 06.07.2017, the respondent's
first witness Vinod's further examination-in-chief was conducted
(it appears that inadvertently the date mentioned is 23.06.2017).
In the said examination-in-chief, certain documents were brought on
record by the respondents and the said documents came to be exhibited.
It appears that pursuant thereto, when the petitioners' advocate learnt
about the same, the petitioners filed an application and sought de-
exhibiting of the said documents, i.e. documents at Exhibits 47 to 51.
According to the petitioners, unless the complainant was examined,
the said documents could not have been exhibited and brought on
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WP 895/17 4 Judgment
record. It was also stated in the said application (Exhibit 54), that the
said documents were exhibited behind the back of the petitioners and in
the absence of their counsel. The said application, i.e. Exhibit 54 was
rejected by the learned Magistrate vide impugned order dated
14.08.2017, by observing that the said documents, i.e. Exhibits 47 to 51
were properly exhibited.
6. It is not necessary to go into detail, as to at what stage,
the application (Exhibit 52) was filed by the petitioners, whether, before
Vinod's evidence commenced or after it concluded. The fact remains that
an adjournment application was preferred by the petitioners on
06.07.2017 and that the same was allowed by the learned Magistrate.
Admittedly, Vinod, during his examination-in-chief, has brought
certain documents on record, which have been exhibited. Vinod is a
broker and not the complainant. Under these circumstances, I am of the
opinion that the petitioners should be given a fair opportunity to oppose
the exhibition of documents. As the documents were exhibited in the
absence of the counsel for the petitioners, the petitioners have been
deprived of an opportunity to object the exhibiting of the documents.
Accordingly, considering the peculiar facts of this case, the following
order is passed.
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O R D E R
I) The petition is allowed.
II) The impugned order dated 14.08.2017 passed below Exhibit
54 by the learned Judicial Magistrate First Class, Court No.11, Akola in
Summary Criminal Case No.2212/2015 is quashed and set aside.
III) The documents at Exhibits 47 to 51 are de-exhibited. In fact,
the further examination-in-chief of Vinod recorded on 06.07.2017 be
effaced from the record.
IV) The respondent is at liberty to conduct further examination-
in-chief of Vinod again.
V) The proceedings before the trial Court are expedited.
VI) All contentions of both the parties are kept open.
7. Rule is made absolute in the aforesaid terms. Accordingly,
the petition is disposed of.
8. All parties to act on the authenticated copy of this judgment.
JUDGE
APTE
