Bombay High Court
Dnyaneshwar Suryabhan Khadke vs Arjun Rangnath Shinde And Another on 28 January, 2025
2025:BHC-AUG:2345
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1880 OF 2023
Dnyaneshwar s/o Suryabhan Khadke ... Petitioner
Age 46 years, Occu: Labour & Agri.
R/o Panegaon Tq. Newasa
Dist. Ahmednagar
VERSUS
1. Arjun s/o Rangnath Shinde
Age 54 years, Occu: Agri.
R/o Mandegavhan Tq. Newasa
Dist. Ahmednagar
2. The State of Maharashtra ... Respondents
Mr. K. N. Shermale, Advocate for the Petitioner,
Mr. Manoj A. Dond, Advocate for Respondent No.1
Ms. A. S. Deshmukh, APP for the Respondent No.2-State
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 21.01.2025
PRONOUNCED ON: 28.01.2025
JUDGMENT:
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1. Rule. Rule made returnable forthwith. Heard the matter finally at
the stage of admission with the consent of both the parties.
2. By the present Petition under Articles 226 and 227 read with
Section 482 of Code of Criminal Procedure, 1973 (for brevity hereinafter
to be referred as Cr.P.C.), the Petitioner takes exception to the order dated
28.11.2023 passed by the learned Sessions Judge, Ahmednagar in Cri.
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Misc. Application No. 214 of 2023, thereby rejected the prayer of the
present petitioner/original accused for transfer of complaint bearing SCC
No. 571 of 2019 from the file of learned 2 nd Joint Civil Judge Junior
Division & Judicial Magistrate First Class, Newasa, and directed the
Petitioner to pay the cost of Rs. 2,000/- to the present respondent/original
complainant.
3. Having regard to the submissions canvassed on behalf of both the
sides, I have gone through the Petition Paper Book. It is not in dispute that
the complainant instituted a complaint bearing Summary Criminal Case
No. 571 of 2019 for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for brevity " NI Act") and it is pending
on the file of learned Judicial Magistrate First Class, Newasa.
4. The present petitioner is the original accused and the present
respondent No. 1 is the complainant in Complaint bearing SCC No. 571 of
2019. (For the sake of brevity, parties to the present petition hereinafter be
referred in their original capacity as "complainant" and "accused").
5. On compliance of mandatory provisions of Section 202 Cr.PC., on
14.02.2020, the learned trial Court passed the order and issued process
against the accused for the offence punishable under section 138 of the NI
Act. The Respondent-1/ complainant filed evidence affidavit on
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15.03.2022 and further examination in chief was recorded and documents
are exhibited. On 17.03.2023, the learned Judicial Magistrate First Class
passed the order of "No Cross Examination". Thereafter, the matter was
fixed on 27.04.2023 for further consideration. On 27.04.2023, the accused
was absent, however, his counsel filed an Application under Section 45 of
the Evidence Act, 1872 and prayed for referring the cheque in question to
the handwriting expert because there is alteration in the cheque amount.
Thereafter, the learned JMFC adjourned the trial on 21.07.2023, but the
accused remained absent.
Thereafter, the complainant filed Exh. 51, an application for issuance of
non bailable warrant against the accused. Accordingly, on 21.07.2023, the
learned JMFC issued the non-bailable warrant against the accused.
Therefore, the Petitioner filed Cri. Writ Petition No. 1455 of 2023 for
setting aside the order of issuance of non bailable warrant passed below
Exh.51. On 19.10.2023, this Court passed an order in said Petition and
directed the trial Court not to take the petitioner in custody in connection
with the crime in question for the period of one month and the Petitioner
was directed to appear before the learned Magistrate on the next date of
hearing i.e. on 08.11.2023. So also, the trial court was directed to conduct
the trial of complainant bearing SCC No. 571 of 2019 as expeditiously as
possible.
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4. On 08.11.2023, the petitioner approached before the JMFC and
filed Exh.53 an application for cancellation of NBW, which came to be
allowed.
6. The learned counsel appearing for the present petitioner/accused
canvassed that, the Petitioner instituted Criminal M.A. No. 214 of 2023,
before the learned Sessions Judge, Ahmednagar, and prayed for the
transfer of complaint bearing SCC No. 571 of 2019 (Arjun Rangnath
Shinde Vs. Dnyaneshwar Suryabhan Khadke ) from the Court of 2nd Joint
Civil Judge Junior Division & Judicial Magistrate First Class, Newasa, to
any other Court. However, on 28.11.2023, the learned Sessions Judge
passed the impugned order, declining the petitioner's request for the
transfer of the proceeding and imposed cost of Rs.2000/- upon him.
7. The learned counsel appearing for the petitioner/accused
canvassed that, the impugned order passed by the learned Sessions Court
is in violation of principles of equity, good conscience and natural justice.
Further, impugned order lacks application of judicious mind because, as
per Roznama, the accused filed Exh. 47, an Application for referring the
disputed cheque to a handwriting expert under section 45 of the Evidence
Act. However, the learned trial court without deciding said application
posted the matter for recording statement of the petitioner/accused under
section 313 Cr.P.C. Therefore, the petitioner apprehended about not
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receiving substantial justice and fair trial. However, the learned Sessions
Court failed to consider the provisions of law and facts before passing the
impugned order dated 28.11.2023, hence, it is illegal and bad in law.
8. Per contra, learned counsel appearing for respondent No.1/
complainant submits that, the accused is attempting to delay the matter
on ground or another. The petitioner/accused remained absent on
numerous occasions. Therefore, the learned trial court repeatedly issued
warrants to secure his presence. Not only this, but the complainant filed
evidence affidavit and deposed further to prove the documents. The
learned trial Court granted ample opportunities to the petitioner to cross
examine the complainant but for considerable period, the petitioner failed
to cross examine the complainant. Therefore, the respondent was
compelled to file the application for issuance of non bailable warrant
against the petitioner. Ultimately, the learned trial Court passed the order
and issued non bailable warrant against the petitioner/accused, which has
been subsequently recalled. Further, matter was placed before the Lok
Adalat to explore the possibility of settlement, but no settlement was
arrived at.
9. On face of record, it appears that, on 17.03.2023, the counsel of the
petitioner/accused prayed for grant of personal exemption of the
petitioner/accused and adjournment. Accordingly, the exemption was
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granted, but the adjournment was rejected. The complainant entered into
witness box and led further evidence. Further, on 27.04.2023, the
petitioner/accused was remained absent and his counsel obtained
exemption for his personal appearance. Thereafter, the petitioner filed
Exh. 47 application for referring the cheque in question to the
Handwriting Expert for obtaining opinion under Section 45 of the
Evidence Act. On 21.07.2023, the accused was again absent, therefore,
warrant was issued against him but it was subsequently cancelled. The
respondent/complainant undergone cross examination conducted on
behalf of the petition/accused. The Respondent filed Pursis and closed his
evidence. Thereafter, matter was posted for recording of statement of the
accused under section 313 of Cr.PC.
10. Needless to say that, neither the Petitioner/Accused has
entered into witness box nor he examined any other witnesses. As per the
procedure contemplated under Code of Cri. P. C., the Accused having right
to lead defence evidence and can examine any other witness to prove his
defence after statement of the Accused is recorded u/s 313 of Cri. P. C.
However, the Petitioner/accused filed application Exh. 47 seeking expert's
opinion on the figure "0" (Zero) written on the cheque on ground that
one "0" (zero) is smaller than others, without leading defence evidence.
Further, the petitioner/accused has not given reply to the mandatory
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notice u/s 138 of NI Act, which was served upon him and no such defence
taken at any time before. However, the petitioner first time taking such
defence. It is well settled principles of law that, the Court machinery
cannot be used for collecting evidence for the parties, however, by the
filing Exh. 47, the petitioner saught to collect expert's evidence by using
Court machinery, which is not permissible. Therefore, the submission
canvassed on behalf of the petitioner/accused not acceptable to my
judicial conscience.
11. During cross-examination, suggestion was given to the
respondent/complainant that one of the zeros on the cheque appeared
smaller than the other. Except this, nothing is brought on record to show
that the respondent/ complainant overwritten the word or added word.
Therefore, the contention of the petitioner/complainant that Exh. 47
application filed by him was not decided by the learned trial court and
directly proceeded to record statement of the accused under Section 313
Cr. P. C., does not appear justifiable. Since the petitioner/accused raised
an objection about figure "0" (zero) appearing on the cheuqe, hence, the
burden lies on the petitioner/accused to prove his defence with cogent
evidence after recording statement under section 313 of the Cr.P.C. of the
petitioner/accused.
12. In the case in hand, the petitioner filed Criminal M.A. No. 214 of
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2013 under section 408 of CrP.C. and prayed for transfer of trial of
complaint bearing SCC No. 571 of 2019 from the file of learned 2nd Joint
Civil Judge Junior Division & Judicial Magistrate First Class, Newasa to
any other Court on ground that, non bailable warrant was issued against
him and he was threatened that, if he gives trouble to the Presiding
Officer, he would be detained in Jail.
13. On 28.11.2023, the learned Sessions Court,
Ahmednagar passed the impugned order and observed in paragraph Nos.
10 and 11 of the impugned judgment as under:
"l0] The contention in the transfer application that he remained
absent on only one date and therefore, the NBW was issued by the
learned Magistrate and thereafter the complainant abruptly gave
affidavit of examination-in-chief and on the same day adduced all
documents in evidence and the case was immediately posted for
statement of accused under Section 313 of Code of Criminal
Procedure, is contrary to the record as stated hereinbefore. At the
cost of repetition, it is to be stated that the affidavit of examination-
in-chief was filed on 15.03.2022. On the next date on 29.04.2022
warrant was issued as the accused was absent and he did not pay
the amount of 20% of the cheque as ordered by the Court. It was
adjourned to 16.06.2022. Meanwhile, the accused through his
present learned advocate appeared on 17.05.2022, got the case
taken on board and got the warrant cancelled. Instead of taking
such recourse on the next occasion, the accused directly filed writ
petition. In view of the cancellation of warrant on 17.05.2022,
there is no merit in the submission of the learned defence advocate
that the learned Magistrate was not likely to cancel the warrant
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and therefore, the accused had to file the writ petition.
11] After getting the warrant cancelled on 17.05.2022, the accused
took adjournment on the next date. On the further next date his
adjournment application was granted as last chance. on 5th date of
the adjournment subsequent to that, the further adjournment was
rejected on 17.03.2023 and the documents produced by the
complainant were taken in evidence. The matter was adjourned for
cross examination. On the next date, the accused moved application
at Exh.47 for calling opinion of the Handwriting Expert. The
contention of the learned advocate Shri Shaikh for the accused that
the stage for examination of accused under Section 313 of Code of
Criminal Procedure has not reached, is incorrect."
14. With the above observation, the learned Session Court held
that, the allegations made by the respondent/accused are not substantial,
hence, rejected the application for transfer of the proceeding, which does
not appear to be perverse, illegal and bad in law. Therefore, the Criminal
Writ Petition deserves to be dismissed. Accordingly, it is dismissed. Rule
discharged.
15. Resultantly, earlier interim order passed on 21.12.2023 and
05.01.2024 shall stand vacated.
( Y. G. KHOBRAGADE, J. )
JPChavan
