Dwarkadas Shribhagwan Jaipuriya vs Sou. Gauri Manoj Shinghaniya
2017 Latest Caselaw 8534 Bom

WP  233/16                                             1                           Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                 CRIMINAL WRIT PETITION NO. 233/2016
Dwarkadas Shribhagwan Jaipuriya,
Aged about 66 years, Occupation - Business,
Resident of Pimpalgaon Road, Yavatmal,
Tahsil and District Yavatmal.                                                 PETITIONER
                                      .....VERSUS.....
Sou.Gauri Manoj Shinghaniya,
Aged 32 years, Occupation - Service,
Resident of Rajendra Nagar, 
Dhamangaon Road, Yavatmal, 
Tahsil and District Yavatmal.                                                  RESPONDE
                                                                                        NTS
                       Mr. A.A. Naik, counsel for the petitioner.
                       Mr. R.M. Bhangde with Mr. A.K. Bhangde, counsel for the respondent.

                                           CORAM : REVATI MOHITE DERE, J.

                                            DATE        :          8  TH   NOVEMBER,   2017.
                                                                            



ORAL JUDGMENT 


               RULE.    Rule is made returnable forthwith.   The petition is

heard finally at the stage of admission with the consent of the learned

counsel for the parties and taken up for final disposal.

2. By this petition, the petitioner has impugned the order

dated 19.10.2015 passed by the learned Additional Sessions Judge,

Yavatmal, below Exhibits 20 and 23, in Criminal Appeal No.20/2009.

3. Learned counsel for the petitioner submits that the appellate

Court had erred in law, by refusing to grant permission to the petitioner,

to adduce additional evidence in appeal or in directing the trial Court to

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record the evidence under Section 391 of the Code of Criminal Procedure.

It is further submitted that the documents filed by the petitioner were

necessary and essential for a just decision in the said case, inasmuch as,

the said documents go to the root of the matter, i.e. whether the

cooperative society had the authority to issue cheque or not. He

submitted that the petitioner had received information in writing under

the Right To Information Act, 2005, that the Agrasen Nagari Cooperative

Society was not authorized to issue cheques to its members and had no

permission from the Reserve Bank of India to carry out banking business.

He submitted that in light of the documents that were received by the

petitioner under the Right To Information Act, it is necessary for the

petitioner to examine three witnesses, i.e. Shri Rohit Jaipuria (petitioner's

son); Shri Hushe, Public Information Officer and Deputy Registrar

(Administration) Cooperative Societies; Shri V.S. Das, Executive Director

and Chief Public Information Officer, Reserve Bank of India, Mumbai.

Learned counsel relied on the judgments reported in AIR 1965 SC 1887

(Rajeswar Prasad Misra Versus The State of W.B. & another), AIR 1987

SC 1321 (State of Gujarat Versus Mohanlal Jitamalji Porwal & another)

and 2012(3) All M R 502 (Mrs.Maria Elviradas Neves Ferreira Trindade &

others Versus Deputy Collector, Margao & another), in support of his

submissions.

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4. Mr.R.M. Bhangde, learned counsel for the respondent,

opposed the petition. He submitted that no interference is warranted in

the impugned order. Learned counsel for the respondent further submits

that in 2010, a similar application, i.e. an application for grant of

permission to file documents was filed by the petitioner and the same was

rejected by the learned Sessions Judge vide order dated 26.07.2011. He

submitted that the said order has attained finality, inasmuch as, the said

order dated 26.07.2011 has not been challenged by the petitioner. He

submitted that the applications at Exhibits 20 and 23 were filed in 2015,

after almost five years and that the relief prayed in the application at

Exhibit 23 is the same relief that was sought earlier in 2010 and was

rejected.

5. Perused the papers. The petitioner is the original accused

and the respondent is the original complainant. The respondent-

complainant had filed a complaint in 2005 under Section 138 r/w Section

142 of the Negotiable Instruments Act as against the petitioner-accused,

in the Court of the learned Judicial Magistrate First Class, Yavatmal. The

said complaint was registered as Summary Criminal Complaint Case

No.341/2005. The respondent-complainant in support of her case

examined her Special Power of Attorney, CW-1 Manoj Parmanand

Singhania and closed her evidence by filing a pursis on 15.09.2005.

Thereafter, the statement of the petitioner-accused was recorded under

WP 233/16 4 Judgment

Section 313 of the Code. In his defence, the petitioner-accused examined

himself as DW1-Dwarkadas Jaipuria; DW2-Narendra Ramnath Kuthe,

Director of Agrasen Nagri Credit Cooperative Society; DW3-Shamsuddin

Malnas and DW4-Shrikant Hamire, Assistant Manager, Reserve Bank of

India. The said witnesses were cross-examined by the learned counsel for

the respondent-complainant and thereafter, the petitioner-accused closed

his evidence. After hearing the parties, the learned Judicial Magistrate

First Class (Court No.4), Yavatmal was pleased, vide judgment and order

dated 15.04.2009, to convict the petitioner for the offence punishable

under Section 138 of the Negotiable Instruments Act and sentenced him

to suffer Simple Imprisonment for one year. The petitioner-accused was

also directed to pay Rs.2,00,000/- to the respondent-complainant towards

compensation under Section 357(3) of the Code of Criminal Procedure.

6. Being aggrieved by the said judgment and order of

conviction and sentence, the petitioner-accused preferred an appeal in the

Sessions Court, Yavatmal being Criminal Appeal No.20/2009 on

04.05.2009. It appears that the petitioner's son received certain

documents on 03.07.2009 under the Right To Information Act, 2005,

from the Public Information Officer and Deputy Registrar

(Administration), Co-op. Societies, Yavatmal, wherein it was mentioned

that Agrasen Nagari Co-op. Society was not authorized to issue cheques,

WP 233/16 5 Judgment

to its members and had no permission from the R.B.I. to carry out

banking business. Admittedly, the said information was received by the

petitioner's son on 03.07.2009. It is a matter on record, that the

petitioner-accused filed an application dated 21.10.2010 seeking

permission to file documents, to prove the petitioner's case. The said

application (Exhibit 9) was rejected by the learned Additional Sessions

Judge, Yavatmal vide order dated 26.07.2011. Admittedly, the said order

has attained finality, inasmuch as, the said order has not been

challenged by the petitioner-accused. Thereafter in 2015, i.e. after 4

years, the petitioner-accused filed two applications before the appellate

Court; (i) an application (Exhibit 20) was filed seeking permission to

adduce further additional evidence in appeal or for directing the

concerned Magistrate to record the evidence, and (ii) an application

(Exhibit 23) for permission to file on record the documents obtained

under the Right To Information Act, 2005. Both the said applications

were filed on 08.05.2015. The learned Additional Sessions Judge,

Yavatmal, vide common order dated 19.10.2015 was pleased to reject the

said applications.

7. There can be no dispute with the ratio laid down in the

judgments relied upon by the petitioner. However, the facts of the

present case are clearly distinguishable.

WP 233/16 6 Judgment

8. In the facts of the present case, the petitioner-

accused examined four witnesses in support of his case in the trial

Court. After the trial Court was pleased to convict and sentence the

petitioner-accused, an appeal was filed in the Sessions Court, Yavatmal

on 04.05.2009. Despite the fact, that the documents in question,

were received in July-2009, under the Right To Information Act, an

application to produce the said documents on record was filed only

in October-2010, i.e. after more than one year of receiving the

documents, which was rejected by the learned Sessions Judge on

26.07.2011. Admittedly, the said order dated 26.07.2011 was not

challenged by the petitioner-accused and as such, the said order has

attained finality. It appears, that thereafter, after almost 4 years, when

the appeal was ripe for final hearing, the applications, at Exhibits 20 and

23 were filed by the petitioner-accused. In one application a

similar/identical relief as sought earlier in 2010 was prayed for and in the

other application indirectly, the same relief was sought for, i.e. for

adducing evidence of witnesses to bring on record the very documents

obtained under the R.T.I. Act. The said applications were filed after five

years, when the appeal was ripe for hearing. It is pertinent to note that

the power under Section 391 must be exercised sparingly and only in

suitable cases.

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9. Considering the aforesaid, in the facts, no interference is

warranted in the impugned order in writ jurisdiction. There is no

infirmity in the order dated 19.04.2015 passed by the learned Additional

Sessions Judge, Yavatmal.

10. Accordingly, the petition is dismissed and as such stands

disposed of. Rule stands discharged. All the contentions of all the parties

otherwise on merits are kept open. Since the appeal is of the year 2009,

the appellate Court is directed to dispose of the same as expeditiously as

possible and in any event within a period of three months from the date

of receipt of this order.

JUDGE

APTE