Subhash Mahadev Puri vs Praveen Digamber Petkar
2018 Latest Caselaw 258 Bom

Judgment

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                                               1

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

              CRIMINAL APPLICATION (APL) NO.856 OF 2016

Subhash Mahadev Puri,
Aged about 47 years, 
Occupation : Service,
R/o Anjangaon Surji,
Tahsil Anjangaon Surji, 
District Amravati.                                            ..... Applicant.

                                      ::   VERSUS   ::

Praveen Digamber Petkar,
Aged about 47 years,
Occupation : Service,
R/o Anjangaon Surji,
Tahsil Anjangaon Surji, 
District Amravati.                                     ..... Non-applicant.

=======================================================================
            Shri M.N. Ali, Counsel for the applicant.
            Shri S.S. Shingane, Counsel for the applicant.
=======================================================================


                                  CORAM : V.M. DESHPANDE, J.

                                  DATE     :  JANUARY 10, 2018.

ORAL JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally by

.....2/-

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consent of learned counsel Shri M.N. Ali for the applicant and learned

counsel Shri S.S. Shingane for the non-applicant.

2. The present criminal application under Section 482 of the

Code of Criminal Procedure is filed by the original complainant. He

preferred proceedings against the non-applicant for the offence

punishable under Section 138 of the Negotiable Instruments Act, 1881.

The said case was registered as Criminal Case No.101 of 2008. Learned

Magistrate, on 21.8.2009, recorded the finding of guilt against the non-

applicant and imposed jail punishment for 6 months and also directed

that the non-applicant shall pay Rs.4.00 lacs by way of compensation.

3. Against the said judgment and order of conviction on

21.8.2009, the non-applicant filed an appeal before the Appellate Court.

The said appeal was registered as Criminal Appeal No.42 of 2009 and is

pending on the file of learned Additional Sessions Judge at Achalpur.

During the pendency of the said appeal, application Exhibit 29 was

moved by the non-applicant. The said application was moved under

.....3/-

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Section 391 of the Code of Criminal Procedure. According to the said

application, though the non-applicant filed a reply to the statutory

Notice issued against him by the applicant which is dated 15.1.2008,

learned Magistrate has not considered the reply and has observed that

the said Notice was not replied. Therefore, the application was

required to be filed.

4. Learned Additional Sessions Judge, vide its order dated

3.9.2016, allowed the application filed on behalf of the non-applicant

and permitted the non-applicant to adduce evidence before the Lower

Appellate Court itself. Not only that, the Lower Appellate Court has

ordered that the additional evidence shall be limited only to the extent

of proving of contents of the reply Notice. The aforesaid order is being

questioned before this Court.

5. Exhibit 21 is Notice issued by the applicant/original

complainant to the non-applicant and it is dated 15.1.2008. Exhibit 22

is acknowledgement showing the receipt of Notice Exhibit 21 by the

.....4/-

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non-applicant.

6. During the course of hearing, learned counsel Shri M.N.

Ali for the applicant has stated that the applicant/complainant has

received the reply Notice issued by the non-applicant which is dated

24.1.2008.

7. It is to be noted that even the said reply Notice is already

filed on record by the applicant/complainant before the Trial Court

itself vide list of documents Exhibit 53.

8. Learned counsel Shri M.N. Ali for the applicant, on the

instructions from his client, states that the reply given by the non-

applicant can be read in evidence. Statement accepted.

9. In view of the aforesaid, there is no necessity of recording

the additional evidence at the appellate stage as ordered by the Lower

Appellate Court. The Lower Appellate Court, therefore, can give

necessary exhibit number to the reply Notice. The Lower Appellate

.....5/-

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Court is, therefore, directed to decide the appeal in accordance with

law after considering the reply Notice, which can be read in evidence.

10. With this, the criminal application is disposed of.

JUDGE

!! BRW !!

...../-