Dr Mrs Rajeshree W/O Rambahadur ... vs Chandravilas S/O Chandrashekhar ...
2023 Latest Caselaw 1268 Bom

                                         225-A apl 773.19.odt..odt
                                               1/7


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

      CRIMINAL APPLICATION (APL) NO.773 OF 2019



1.        Dr. Mrs. Rajeshree w/o Rambahadur ... APPLICANT
          Yadav, Prop. Of Nulife Clinic,
          Aged about 47 years,
          Occupation : Doctor, R/o
          Brijmohan Niwas, Samadhan Nagar,
          Behind Police Line Takli,
          Nagpur- 440013 (Original respondent/accused)


                          // VERSUS //


1.        Chandravilas                ... NON-APPLICANT
          s/o Chandrashekhar,
          Handa, aged about 59 years,
          Occupation: Business,
          R/o Plot No.78, Mahesh
          Colony, Chandannagar,
          Nagpur (Original Respondent/
          Complainant)

____________________________________________________
Shri R.M. Bhangde, Advocate for the applicant.
Shri J.M. Gandhi, Advocate for the respondent.
____________________________________________________



CORAM : G. A. SANAP, J.

DATE:- 07/02/2023

ORAL JUDGMENT 225-A apl 773.19.odt..odt

1. Heard Shri R.M. Bhangde, learned advocate for

applicant and Shri J.M. Gandhi, learned Advocate for the

non-applicant. Perused the record and proceedings.

2. In this application, the challenge is to the order

dated 15.03.2019 passed by learned District Judge-11 and

Additional Sessions Judge, Nagpur whereby the learned

Judge was pleased to reject the application at Exh. 49 made

by petitioner for leading the additional evidence. The

application was primarily rejected on the ground that this

accused did not make grievance that the opportunity was

not granted to her to lead the evidence or to effectively

cross examine the complainant.

3. In the application, the main ground putforth for

leading additional evidence has been set out in paragraph

No.4 of the application. It was stated that the production of

the certified copy of the plaint in a suit filed by the

complainant for recovery of the amount was necessary. It

was also stated that the complainant would be required to 225-A apl 773.19.odt..odt

be confronted with the statement made in the plaint more

particularly set out in paragraph No.4 of the application. It

was stated that statement of the complainant in the

complaint and in the plaint is self contradictory.

4. The relevant statement which is necessary for

deciding this application is as follows:-

"As stated earlier in the 138 complaint the respondent/original complainant has stated that he has given Rs.7,50,000/- to the appellant in cash but in the civil suit the respondent/original complainant has failed to mention the mode of payment in the entire plaint and he has stated that he had given the said amount to the appellant/accused and her husband."

5. Learned Advocate for the applicant submitted that

the judgment in the criminal case was passed on 18.03.2010

by the learned Judicial Magistrate First Class, Nagpur

whereas the plaint in Civil Suit filed on 24.02.2010 was

served after 17.03.2010. Learned Advocate therefore,

submitted that the basic observations made by the learned

Judge while rejecting the application touching the aspects of

non denial of an opportunity to cross examine the 225-A apl 773.19.odt..odt

complainant is not supported by the record. Learned

Advocate further submitted that this is a fit case to grant an

opportunity to the accused to cross examine the

complainant and to confront him with the statement

reproduced above and prove the contradictions.

6. Learned Advocate for the complainant-non

applicant submitted that his client is ready to place before

the learned Additional Sessions Judge in the appeal the

certified copy of the plaint. The learned Advocate further

submitted that there is no contradictions as put forth. The

learned Advocate further submitted that if this Court is

inclined to grant permission for leading additional evidence,

it shall be confined only to the said statement and not more

than that. The learned Advocate further submitted that if

such an opportunity is granted then considering the

contradictions sought to be brought on record, the number

of questions may be limited.

7. On going through the record, I am satisfied that 225-A apl 773.19.odt..odt

for the purpose of avoiding the delay and to give the finality

to the case of the complainant/non-applicant, grant an

opportunity may not cause prejudice to the

complainant/non applicant. The copy of the plaint was not

available with the accused when the complainant was cross

examined. In my view the dates of the proceedings

mentioned here-in-above would show that on the date of

the decision of the complaint, the plaint was not served

upon the accused. The accused, therefore, had no benefit of

knowing the contents of the plaint. In my opinion, therefore,

in order to meet the ends of justice and to avoid further

delay in the decision of the appeal, it would be just and

proper to grant the permission for leading additional

evidence as prayed for.

8. Accordingly, the application is allowed. The

impugned order dated 15.03.2019 passed by learned

District Judge-11 and Additional Sessions Judge, Nagpur at

Exh.49 is quashed and set aside. The application for leading

additional evidence is allowed on following conditions:-

225-A apl 773.19.odt..odt

(i) The appellant/accused is allowed to produce on

record the certified copy of the plaint in Special Civil Suit

No.211/2015.

(ii) On production of the certified copy of the plaint,

the accused/appellant is granted an opportunity to cross

examine the complainant for the purpose of confronting the

complainant with the above reproduced statement only.

(iii) Considering the above statement, the cross

examination shall be limited to the purpose of proof of

contradictions. In any case, for undertaking this exercise the

number of questions shall not be more than 10.

(iv) Learned Additional Sessions Judge, in order to

save the time may record the additional evidence himself.

9. The learned Advocate for the parties submit that

the parties will attend the Court of Additional Sessions

Judge where the appeal is pending on 14.02.2023. Learned

Additional Sessions Judge shall complete the recording of

cross-examination on that date only.

225-A apl 773.19.odt..odt

10. Criminal Application stands disposed of in above

terms.

JUDGE

manisha

Signed By:MANISHA ALOK SHEWALE

Signing Date:10.02.2023 17:43