Pramod Bhikulal Gupta vs Sachin Ravindra Khandelwal And ...
2018 Latest Caselaw 366 Bom

                                                    1                         apl89.17.odt

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

               CRIMINAL APPLICATION (APL) NO.89/2017

      Pramod Bhikulal Gupta,
      aged 53 years, Occ. Business,
      R/o Deepak Chowk, Tq. Dist.
      Akola                                                  .....APPLICANT
                        ...V E R S U S...

 1. Sachin Ravindra Khandelwal,
    aged 41 years, Occ. Business,
    r/o Opp. Akola Janta Commercial
    Co-Op. Bank Ltd. Old Cotton Market,
    Akola.

 2. State of Maharashtra, through
      G. P. Nagpur.                                           ...NON APPLICANT
 -------------------------------------------------------------------------------------------
 Mr. J. B. Gandhi, Advocate for applicant.
 Mr. S. A. Mohta, Advocate for non applicant no.1
 Mr. N. R. Rode, A.P.P. for non applicant no.2.
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 12.01.2018

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard Mr. J.

B. Gandhi, Advocate for applicant, Mr. S. A. Mohta, Advocate for

non applicant no.1 and Mr. N. R. Rode, A.P.P. for non applicant

no.2.

2. The challenge, which is set up in the present

application under Section 482 of the Code of Criminal Procedure

2 apl89.17.odt

is to the order passed by the learned Additional Sessions Judge,

Akola dated 30.12.2016 below Exh.-24 in Criminal Appeal

No.70/2008 by which the learned Judge of the appellate Court

rejected the application filed on behalf of the present applicant

under Section 391 of Cr. P.C. for grant of permission to adduce

oral evidence.

3. The non applicant herein filed proceeding against the

present applicant for an offence punishable under Section 138 of

the Negotiable Instruments Act since cheque bearing No. 0523469

dated 03.08.2006 drawn on Akola Central Cooperative Bank Ltd.,

branch at Akola for Rs.43,400/- issued in favour of him was

dishonoured by the banker of the present applicant. After issuance

of the statutory notice, when it was noticed by the complainant

that the applicant has not repaid the amount mentioned in the

aforesaid cheque, he has lodged the complaint. The said

complaint was registered as S.C.C.No.7362/2006.

4. In response to the summons, the applicant/accused

appeared and he was released on bail. The non applicant/original

complainant filed his affidavit Exh.-20 in lieu of the examination

3 apl89.17.odt

in chief and also relied on the documents which are duly exhibited

during the course of trial. The non applicant was thoroughly

cross-examined by the applicant. After closure pursis was filed by

the non applicant-complainant, the learned Magistrate examined

the present applicant under Section 313 of Cr.P.C. That time the

applicant has filed various documents on record and it is an

admitted position. Though, the documents were filed on record

when the applicant entered for recording his statement under

Section 313 Cr.P.C., he refused to enter into the witness box nor

he examined any witness in order to prove the documents which

he produced on record.

5. The learned Magistrate vide judgment dated

27.08.2008, after appreciating the complaint, various documents,

complainant's evidence and the line of defence which was

available through the cross-examination of the complainant,

noticed that the applicant has issued cheque in discharge of his

legal liability and therefore recorded a finding of guilt against him.

Consequently, the applicant was directed to suffer simple

imprisonment for three months and to pay a fine of Rs.50,000/-

and in default to suffer simple imprisonment for 15 days.

4 apl89.17.odt

6. Being aggrieved by the said conviction, the applicant

preferred statutory appeal before the appellate Court. The said

appeal is registered as Criminal Appeal No.70/2008. The appeal

was allotted to the file of Additional Sessions Judge, Akola. The

appeal is filed in the year 2008. During the pendency of the

appeal, on 12.12.2012, an application Exh.-17 was moved by the

present applicant for recording of evidence under Section 391 of

the Code of Criminal Procedure. Along with the said application,

certified copies of certain orders were placed on record. The

respondent, in the said appeal, gave no objection for taking

documents on record. On 17.02.2016 when the said application

Exh.-17 was taken up for consideration, for the reasons best

known to the applicant, the applicant and his counsel failed to

remain present though they were called by the learned appellate

Court, repeatedly. The learned Judge thereafter passed an order

by which the application Exh.-17 was partly allowed and

production of the documents was allowed and it was directed that

these documents be exhibited being the certified copies of the

judgment and decree in the civil suit.

5 apl89.17.odt

7. Subsequent to the said order which attained finality,

application Exh.-24 was filed after lapse of 9 months.

It is this application, which is rejected by the learned

appellate Court by the impugned order.

8. Mr. Gandhi, learned counsel for the applicant

submitted that an opportunity should have been given to the

present applicant to prove his defence. He submitted that the

documents are already filed on record. He therefore submitted

that the Court below ought to have allowed the application and

ought to have granted an opportunity. Though, the submissions as

made by Mr. Gandhi appears to be very attractive in the first

blush, on closer scrutiny, the same are required to be rejected.

9. No doubt, the Court enjoys wide powers under Section

391 of the Code of Criminal Procedure for securing justice. In the

present case, after the evidence of the complainant was over, the

present applicant was examined by the learned Magistrate under

Section 313 Cr.P.C. During his examination, it is an admitted

position that he has filed various documents. These are the

documents for which the present applicant wants to lead evidence

6 apl89.17.odt

at a belated stage. After filing the documents, it was open for the

present applicant either to enter into the witness box or to adduce

the evidence of some person to prove those documents. However,

the applicant chose not to enter the witness box or to examine any

witness. Thus, the opportunity which was available with the

present applicant to prove those documents was not availed by the

present applicant for the reasons best known to him.

10. Had it been the case of the applicant that the

documents which he wishes to prove were not available with him

at the time when he entered into the doc at the time of

examination under Section 313 Cr.P.C., the matter could have

been viewed with some different angle. However, in the present

case, from the very beginning, the documents were available with

the applicant. Not only that he placed those documents on record

therefore it was his duty to prove the same. The trial cannot

proceed in piecemeal. There was no reason on record as to why

the applicant failed to enter into the witness box and examine the

witness when he was examined at the time of recording of the

evidence under Section 313 Cr.P.C. In my view, this attempt is

nothing but an attempt to linger the criminal appeal. Further,

7 apl89.17.odt

factually, application Exh.-17 was moved for the very same reason.

When the applicant and his counsel were called repeatedly by the

appellate Court, they chose not to remain present. Therefore, the

said application was partly allowed. The said order is not

challenged by the applicant before this Court. Thus, order dated

17.02.2016 has reached to its finality. It cannot be reopened by

moving the subsequent application i.e. application Exh.-24.

11. In my view, the learned Judge of the appellate Court

has not committed any wrong or mistake in rejecting the

application. No case is made out by the applicant. The

application is therefore rejected.

Rule is discharged.

JUDGE

kahale