Bombay High Court
Govind S/O Parasram Angwani vs Shri. Jagdish S/O Khushal ... on 17 November, 2017
Bench: R. B. Deo
appa963.17.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.963 O
F 2017
IN
CRIMINAL APPEAL NO.346 OF 2014
Govind s/o Parasram Angwani,
Aged about 45 years,
R/o Sindhi Colony, Power House,
Tumsar (P.S. Tumsar),
Dist. Bhandara. ....... APPELLANT
...V E R S U S...
1] Shri Jagdish s/o Khushal Wairagade,
Aged Major, Occupation: Business,
R/o Nehru-Vivekanand Nagar,
Tumsar (P.S. Tumsar), Dist. Bhandara.
2] State of Maharashtra,
Through G.P., Nagpur. ....... RESPONDENT S
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Shri Krishna S. Motwani, Advocate for Appellant.
Shri Mahesh Rai, Advocate for Respondent No.1.
Shri Ashish Kadukar, APP for Respondent No.2.
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CORAM: ROHIT B. DEO , J.
DATE: th
17 NOVEMBER,
7 .
ORAL JUDGMENT
1] The appellant, who is the original complainant
Govind Parasram Angwani, seeks permission to adduce further
evidence. The application is moved invoking powers under section
391 of the Criminal Procedure Code.
2] The only ground on which the learned Magistrate has
dismissed the complaint under section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as "the Act") is that
the complainant, although produced on record the photo copy of
the return memo issued by the State Bank of India evidencing the
dishonour of cheque, did not prove the said return memo by
producing the original record on record or by adducing secondary
evidence. The learned Magistrate, having recorded the said
finding, has not dealt with any other issue arising in the
complaint.
3] The respondent-accused has not filed any reply in
opposition to Criminal Application 963/2017.
Paragraphs 3 and 4 of the application read thus:
3) That the appellant with due respect submits
that, the complaint was came to be filed in the year
2007 with the necessary documents including the
cheque return memo issued by the banker of the
accused. However, it is usual trend that the photo copies
are placed on record and at the time of evidence only
the originals are being filed. The applicant followed the
same trend and filed originals only when the evidence
started. However, inadvertently original return memo
issued by the bankers of the accused is not placed on
record, which resulted acquittal of the
respondent/accused. Otherwise the accused was not
able to rebut the presumption under section 139 and
118 of the Negotiable Instruments Act. Only because of
inadvertence on the part of the lawyer, the complainant
could not produce the original cheque return memo and
could not recover his hard earned money of
Rs.50,000/-.
4) That the Appellant submits that he approached
the Hon'ble Court with absolutely clean hands and
proved all the documents and brought all the facts
before the Hon'ble Court, in compliance of the
provisions of law. It is submitted that the provisions of
Section 139 and 146 carves a presumption in favour of
the holder and the burden of proof is on the
Accused/Respondent to disprove the same.
However only because of aforesaid mistake, the adverse
order/judgment is passed. The above mistake is only
inadvertent act on the part of a common man which
can be rectified by adducing further evidence to prove
the aforesaid document. Therefore, the applicant seeks
permission to adduce further evidence to the extent of
only the return memo of the banker of the accused.
4] It is trite law, that for the mistake of the counsel, the
litigant should not ordinarily suffer.
I am therefore, inclined to allow the application.
5] However, the applicant-appellant must be saddled
with costs, to compensate the accused. The complainant to deposit
Rs.5000/- in the Trial Court as costs which may be withdrawn by
the respondent-accused.
6] The Criminal Application 963/2017 is allowed.
The learned Magistrate is directed to permit the complainant to
adduce additional evidence to prove the return memo. It is made
clear, that the accused shall be at liberty to adduce such evidence
in rebuttal, and even otherwise, as the accused may deem fit.
7] The learned Magistrate is directed to decide every
issue arising in the complaint afresh.
With these directions, the appeal is disposed of.
8] The appellant-complainant and the respondent-
accused, through their counsels appearing in this Court, undertake
to appear before the learned Magistrate on 02.12.2017 and to
abide by further orders of the learned Magistrate.
The appeal is disposed of accordingly.
JUDGE
NSN
