Dhuneshwar S/O Suryabhan Pethe vs Hitesh S/O Narayanbhai Patel
2017 Latest Caselaw 5260 Bom

Judgment

                                                                    APL99.16 23

                                        1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

          CRIMINAL APPLICATION (APL) NO.99 OF 2016

Dhuneshwar s/o Suryabhan Pethe,
Director of Pethe Builders and Developers
Pvt. Ltd., Aged about 45 years, Occupation Business
R/o 256, Hiwari Layout, Near Jalaram
Mangal Karyalaya, Nagpur - 440 008.                  ..... Applicant.

                                 ::   VERSUS   ::

Hitesh s/o Narayanbhai Patel,
Aged about 40 years, Occupation Business,
R/o 210, Suryanagar, Nagpur-440 008.          ..... Non-applicant.

================================================================
           Shri P.S. Tiwari, Counsel for the applicant.
           Shri K. Nalamwar, Counsel for the non-applicant.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 31, 2017.

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel appearing for the

parties.

.....2/-

Judgment

APL99.16 23

2. The applicant, who is a builder, is questioning

order passed by learned 18th Judicial Magistrate First Class

and Special Court at Nagpur constituted under Section 138 of

the Negotiable Instruments Act, 1881 dated 7.10.2015 below

Exhibit 46 in Summary Criminal Complaint No.8090 of 2014 by

which learned Magistrate allowed application Exhibit 46 filed

on behalf of non-applicant original complainant and issued

witness summons to the witness as prayed for.

3. Learned counsel Shri P.S. Tiwari for the applicant

submits that order passed by the Court below cannot stand to

the scrutiny of law in view of the decision of the Honourable

Apex Court in the case of Jamatraj Kewalji Govani ..vs.. State

of Maharashtra, reported at AIR 1968 SC 178. He submits that

the person, who is sought to be examined by the complainant,

is a person whose name was appearing in the list of witnesses

filed by the complainant along with complaint. However, the

.....3/-

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APL99.16 23

said witness was not examined. He submits that when the

applicant disclosed his defence under Section 313 of the Code

of Criminal Procedure, 1973, thereafter only the application is

moved.

4. It is not in dispute that an agreement was

executed by the present applicant in favour of the non-

applicant in respect of sale of a plot bearing plot No.12 in the

layout owned by the present applicant in patwari Halka No.20

situated in Kapsi (bu), Tahsil Kamptee (Gramin), District

Nagpur for a consideration of Rs.13,86,000/-. It is also not in

dispute that pursuance to the said agreement, the present

non-applicant paid Rs.3,46,000/- towards part consideration.

It is also not in dispute that sale deed was not executed by the

present applicant in favour of the non-applicant. It is also not

in dispute that the present applicant issued disputed cheques

in favour of the non-applicant and when said cheques were

.....4/-

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APL99.16 23

deposited with the banker, the banker of the present

applicant refused to honour the said cheques for want of

insufficient funds.

5. The complaint was filed by the non-applicant.

Along with the complaint, list of witnesses was also given. At

serial No.4, name of Prabhudas K. Patel is appearing.

6. The complainant entered into the witness box. He

was cross-examined by the applicant. After examination of

other witness, the non-applicant filed a closure pursis.

Thereafter, the present applicant's statement under Section

313 of the Code of Criminal Procedure, 1973 was recorded.

At this stage, an application Exhibit 46 was moved

by complainant which is allowed by learned Trial Court by

impugned order.

7. Powers under Section 311 of the Code of Criminal

.....5/-

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APL99.16 23

Procedure, 1973 are available to the Court to do complete

justice. It is only to be seen the examination of the such

witness is essential for just decision of case.

8. I have seen the order under challenge. The

learned Trial Court has given sound reason for allowing the

application after having gone through the evidence of the

complainant and the statement of present applicant recorded

under Section 313 of the Code of Criminal Procedure, 1973.

Thereafter, it is the opinion of the Court below that

examination of witness as stated in application Exhibit 46 is

essential.

9. No prejudice is caused to the applicant as he has

right to cross-examine the said witness.

10. In view of above, I see no reason to interfere with

order passed by learned 18th Judicial Magistrate First Class

and Special Court at Nagpur constituted under Section 138 of

.....6/-

Judgment

APL99.16 23

the Negotiable Instruments Act, 1881 dated 7.10.2015 below

Exhibit 46 in Summary Criminal Complaint No.8090 of 2014.

The criminal application is rejected. Rule is discharged.

JUDGE

!! BRW !!

...../-