The learned Counsel for the applicant has invited my
attention to the law laid down by the Hon'ble Apex Court in the case of
Mohanlal Shamji Soni Vs. Union of India and another reported in 1991
CRI. L. J. 1521 in order to support his contention that the said order
only enables the respondent firm to fill up the lacunae in this case,
which is not a permissible ground for allowing the application filed
under Section 311 Cr. P. C. No doubt, the law as laid down in the case
of Mohanlal Shamji Soni is well settled law and it propounds the
principle that even though power under Section 311 Cr.P.C. is very
wide and without any restriction, it must be exercised with due care
and the Court should not be oblivious of the fact that the power is
circumscribed by the principle that evidence to be obtained must
appear to the Court essential for reaching a just decision of the case by
getting at the truth by all lawful means and as such the exercise of the
power should not be capricious or arbitrary. The impugned order
shows that this very principle of law has been followed by the learned
Magistrate in its letter and spirit. He has found that Santosh Taori
always claimed to be partner of the complainantfirm, which claim was
disputed by the applicant and, therefore, if any additional evidence
was sought to be led by the respondent for substantiating the assertion
that Santosh Taori was partner of the complainantfirm, it would not
amount to any attempt to filling up the lacuna, and rightly so. No
illegality or infirmity or judicial impropriety can be seen in these
findings which stand at the base of the grounds on which application
vide Exh.76 has been allowed by the learned Magistrate by the order
passed on 15/01/2013. It is also seen that the learned Magistrate has
drawn support from the case of Milind Shripad Chandurkar Vs. Kalim
M. Khan & another reported in 2011 AIR SC 1588, wherein the fact
situation was almost similar in the sense that identity of the
complainant as a sole proprietor of the concern to whom a
dishonoured cheque was issued was in question and since it was not
established appropriately by the complainant, although he had an
opportunity to adduce evidence in that regard at the early stage or the
belated stage, the Hon'ble Apex Court acquitted the accused in that
case. Drawing of support from this case by the trial Court cannot be
considered to be inappropriate in view of the observations of the
Hon'ble Apex Court that efforts ought to have been taken by the
complainant in the said case of Milind Shripad Chandurkar for leading
additional evidence either before the trial Court or at appellate stage.
Therefore, I do not see any illegality or impropriety in the order passed
on 15/01/2013. This order, I must say, appears to be necessary for
reaching a just decision in the case and as such calls for no interference
with it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 104 OF 2013
Anil s/o Govindrao Chaudhari
.. Versus ..
M/s Taori Marketing,
CORAM : S. B. SHUKRE, J.
DATED : 6th JANUARY, 2015.
Citation; 2015 CRLJ(NOC)465 BOM, 2015(1)BomCR(Cri)763,2016 ALLMR(cri)1090
4. By this application, the applicant has challenged legality
and correctness of two orders passed by the Court of Judicial
Magistrate, First Class, Nagpur on 14/9/2012 and 15/01/2013.
5. The facts leading to presentation of the application may be
stated in brief as under.:
5.1 The respondent initiated proceedings for
dishonour of cheque issued to it by the applicant towards
satisfaction of the applicant's liability on account of
purchase of some goods by the applicant from the
respondent on credit, under Section 138 of the Negotiable
Instruments Act. The affidavit in evidence was filed by the
respondent on 06/01/2011 and he was also crossexamined
by the applicant on 26/8/2011.
5.2 Few days later i.e. on 30/8/2011 the respondent
moved an application vide Exh.46 seeking leave of the
Court to examine partner of the respondentfirm,
Satyanarayan Taori as its witness on the ground that the
applicant had denied execution of power of attorney in
favour of P.W.1 Krishna Shriramji Takalkhede and had
denied the existence of the firm. This application was
partly allowed by the trial Court on 09/12/2011. The trial
Court allowed the respondent to examine its partner
Satyanarayan Taori only for the purpose of proving of the
power of attorney. The other purpose for which the partner
was sought to be examined as witness of the respondentfirm,
however, was not served by the said order.
5.3 Thereafter, the respondentfirm filed another
application vide Exh.52 with almost a similar prayer. It was
contended in this application that since the applicant had
disputed delivery of goods and balance amount, it was
necessary to prove the same by adducing proper evidence
and, therefore, permission was sought for leading the
evidence of the partner of respondentfirm fully in all
respect. This application was rejected by the trial Court by
an order passed on 28/3/2012.
5.4 The respondent, without getting tired of filing
any more applications, filed yet another application (Exh.
55) on 06/8/2012 with a prayer which was, though
expressed in different words, sought the same relief as in
application vide Exh.52. It was contended in this
application that since the applicant had disputed the
delivery memo and bills, it was necessary to prove the same
by examining Santosh Taori, another partner of respondentfirm
and accordingly leave of the Court was sought for
examining Santosh Taori as witness of the respondentfirm.
This application was, however, allowed by the learned
Magistrate by order passed on 14/9/2012. It appears that
this order was not challenged by the applicant by filing any
revision application or by resorting any other appropriate
remedy.
5.5 After allowing of the application vide Exh.55,
Santosh Taori, partner of the firm was examined as witness
of the respondentfirm and was also crossexamined by the
applicant. Thereafter, the evidence of the complainant was
closed and the matter was fixed for arguments.
5.6 When the case was pending at the stage of
arguments, on 11/01/2013, respondentfirm once again
filed another application vide Exh.76 seeking permission of
the Court to adduce additional evidence by invoking its
power under Section 311 of the Criminal Procedure Code.
This application, by the order passed on 15/01/2013, was
allowed by the learned Magistrate on payment of costs of
Rs.1,200/. It was found by the learned Magistrate that
grant of permission to the respondentfirm to examine its
banker as its witness was necessary for reaching a just
decision in the matter.
5.7 It was the order which was passed on
15/01/2013 granting permission to the respondentfirm to
summon its banker as a witness under Section 311 Cr.P.C.,
which made the applicant file the present application under
Section 482 Cr. P.C. In the process, the applicant has also
challenged the order passed earlier on 14/9/2012 below
application vide Exh.55.
6. Learned Counsel for the applicant submits that earlier order
dated 14/9/2012 passed below application (Exh.55) amounted to
nothing but review of own orders of the Court passed on 09/12/2011
below Exh.46 and 28/3/2012 passed below application Exh.52. He
submits that the order dated 14/9/2012 is particularly a review order
of the one passed on 28/3/2012 on the application Exh.52. According
to him, by application (Exh.52) the respondentfirm had sought leave
of the Court to examine its partner as a witness on the ground that
existence of the partnership firm was denied and delivery of the goods
and balance amount had also been disputed by the applicant. This
application was rejected in its entirety by the order passed on
28/3/2012 by the learned Magistrate and, therefore, another
application seeking permission of the Court to examine Santosh Taori,
one of the partners of the respondentfirm as witness to prove almost
the same facts itself was not tenable as what it sought in effect was
review of the order passed on 28/3/2012. He submits that there is no
provision in the Criminal Procedure Code conferring any power upon
the Court of J. M. F. C. to review its own order which has attained
finality. He submits that the order summoning the person to lead
additional evidence or refusing a person to be summoned as a witness
attains finality by virtue of it being not challenged in any manner in
the superior Court by resorting to appropriate remedy and, therefore,
judicial propriety would require that it should not be reopened. In
support, he places his reliance upon the case of Hindustan
Construction Co. Ltd. and another Vs. Gopal Krishna Sengupta and
others reported in AIR 2003 SC 3536.
7. Learned Counsel Shri Dani for the respondent submitted
that in the first place the order passed on 14/9/2012 did not amount
to review of any of the earlier orders passed by the trial Court much
less review of the order passed on 28/3/2012 for the reason that the
application below Exh.55 on which order dated 14/9/2012 was passed
was moved on altogether different grounds. He submits that in the
earlier application vide Exh.52, which was rejected by the order dated
28/3/2012 so also the application vide Exh.46, which was rejected by
the order passed on 9/12/2011, name of the partner, Santosh Taori
was not mentioned and no prayer was made for examining Santosh
Taori as witness of the respondentfirm. He further submits that, even
otherwise, it would be proper for this Court while exercising its
extraordinary jurisdiction under Section 482 Cr. P. C. to not interfere
with the order passed on 14/9/2012, which has already attained its
finality, it having not been challenged in any manner by the applicant
previously. He further submits that in fact the order passed on
14/9/2012 had been acted upon by the parties as the applicant by
crossexamining Santosh Taori had participated in the proceedings
before the trial Court and thus he can be said to have waived whatever
rights he may had in law in this regard. He also submits that it is not
the case of the applicant that by the order passed on 14/9/2012, any
prejudice has been caused to the rights of the applicant in the sense
that the defence taken by the applicant has been washed away.
Therefore, this is not a fit case for making any interference in the order
passed on 14/9/2012, so submits the learned Counsel for the
respondent.
8. Upon considering all the orders passed by the trial Court,
which orders are of the date 09/12/2011 passed below application
vide Exh.46, 28/3/2012 passed below application vide Exh.52 and
14/9/2012 passed below application vide Exh.55, I find that the order
lastly passed on 14/9/2012 can be considered to be an order which
effectively reviewed the order passed by the trial Court on 28/3/2012
below application (Exh.52). The order passed on 28/3/2012 was on
an application which prayed for grant of leave to examine any of the
partners of the respondentfirm as its witness and this application was
rejected in its entirety by the order passed on 28/3/2012. By the
subsequent application vide Exh.55, although the respondent did not
pray in so many words that any of its partners should be allowed to be
examined as its witness, the respondent sought permission of the Court
to lead evidence of Santosh Taori, one of the partners of the
respondentfirm to prove some of the facts which were disputed by the
applicant. This application was expressed in different words but it
carried the same purport and meaning as previous application vide
Exh.52. Therefore, learned Magistrate ought to have considered the
aspect as to whether allowing of the said application would amount to
review of his own order passed earlier on similar application or not. It
appears that learned Magistrate has not given any thoughtful
consideration to this aspect. This order not being in accordance with
law has to be held as incorrectly passed.
9. The question, however, remains as to whether or not any
exercise of extraordinary jurisdiction of this Court under Section 482
Cr.P.C. to interfere with the order passed on 14/9/2012 would be
warranted. The answer to this question could have been in the
affirmative had it been the case that the order passed on 14/9/2012
had not attained any finality and had been subjected to challenge by
the applicant by resorting to appropriate remedy before it was acted
upon not only by the respondent but also by the applicant. That is
unfortunately not the case here. The applicant has allowed the order
to become final by not challenging it by filing any revision application
or appropriate proceedings. Rather, the applicant allowed the
respondent to lead evidence of Santosh Taori and also participated in
the proceedings before the trial Court by crossexamining Santosh
Taori. In such a situation, judicial propriety requires that the matter is
not allowed to be reopened.
10. There is also another angle from which this matter needs to
be examined. It is of causing of prejudice to the defence of the
applicant by the order passed on 14/9/2012. I do not find that any
such prejudice has been caused to the defence of the applicant by the
order passed on 14/9/2012. The order has also not led to any
miscarriage of justice, rather the order has only subserved the purpose
of justice by allowing the parties to lead best possible evidence and
enable the Court to arrive at just decision in the dispute between the
parties. From this view point as well, I do not think that it would be
appropriate for this Court to exercise its jurisdiction under Section 482
Cr. P. C. by interfering with the order passed on 14/9/2012. It must
be remembered that jurisdiction of this Court under Section 482 Cr. P.
C. is extraordinary in nature and it calls for extraordinary situation for
its appropriate exercise. As said earlier, there being no prejudice
caused to the defence of the applicant and no miscarriage of justice
resulting from the order dated 14/9/2012, I am of the view that no
exceptional situation prevails to impel this Court to interfere with the
order dated 14/9/2012 by invoking its power under Section 482 of
the Criminal Procedure Code.
11. It is also well settled law that the jurisdiction of this Court
under Section 482 Cr. P. C. is discretionary in nature and it is not that
in every case it must be exercised only because some illegality is
noticed. The noticed illegality should also be transforming itself into a
situation where there is a failure of justice or gross abuse of power or
deprivation of substantial rights of the parties and if that does not
occur, there would be no reason for the High Court to invoke its power
under Section 482 Cr. P. C. Accordingly, I find that the order dated
14/9/2012 passed below application vide Exh. 55 by the trial Court
cannot be inferred with in this application and the objection taken in
this regard deserves rejection.
12. As regards the second objection of the applicant about
illegality of the order passed on 15/01/2013 allowing banker of the
respondent to be examined as a Court witness under Section 311
Cr. P. C., I must say that the order as passed by the learned Magistrate
is neither perverse nor incorrect nor improper nor in violation of any
settled principles of law.
13. The learned Counsel for the applicant has invited my
attention to the law laid down by the Hon'ble Apex Court in the case of
Mohanlal Shamji Soni Vs. Union of India and another reported in 1991
CRI. L. J. 1521 in order to support his contention that the said order
only enables the respondentfirm to fill up the lacunae in this case,
which is not a permissible ground for allowing the application filed
under Section 311 Cr. P. C. No doubt, the law as laid down in the case
of Mohanlal Shamji Soni is well settled law and it propounds the
principle that even though power under Section 311 Cr.P.C. is very
wide and without any restriction, it must be exercised with due care
and the Court should not be oblivious of the fact that the power is
circumscribed by the principle that evidence to be obtained must
appear to the Court essential for reaching a just decision of the case by
getting at the truth by all lawful means and as such the exercise of the
power should not be capricious or arbitrary. The impugned order
shows that this very principle of law has been followed by the learned
Magistrate in its letter and spirit. He has found that Santosh Taori
always claimed to be partner of the complainantfirm, which claim was
disputed by the applicant and, therefore, if any additional evidence
was sought to be led by the respondent for substantiating the assertion
that Santosh Taori was partner of the complainantfirm, it would not
amount to any attempt to filling up the lacuna, and rightly so. No
illegality or infirmity or judicial impropriety can be seen in these
findings which stand at the base of the grounds on which application
vide Exh.76 has been allowed by the learned Magistrate by the order
passed on 15/01/2013. It is also seen that the learned Magistrate has
drawn support from the case of Milind Shripad Chandurkar Vs. Kalim
M. Khan & another reported in 2011 AIR SC 1588, wherein the fact
situation was almost similar in the sense that identity of the
complainant as a sole proprietor of the concern to whom a
dishonoured cheque was issued was in question and since it was not
established appropriately by the complainant, although he had an
opportunity to adduce evidence in that regard at the early stage or the
belated stage, the Hon'ble Apex Court acquitted the accused in that
case. Drawing of support from this case by the trial Court cannot be
considered to be inappropriate in view of the observations of the
Hon'ble Apex Court that efforts ought to have been taken by the
complainant in the said case of Milind Shripad Chandurkar for leading
additional evidence either before the trial Court or at appellate stage.
Therefore, I do not see any illegality or impropriety in the order passed
on 15/01/2013. This order, I must say, appears to be necessary for
reaching a just decision in the case and as such calls for no interference
with it.
14. Before passing the final order, I must record a word of
caution for the respondent firm. The proceedings in the complaint
filed by the respondent against the applicant are being delayed
apparently and probably for the reason that the respondent firm has
been filing one application after another showing wavering of it's
mind. The respondentfirm shall now do well to take one firm stand
and allow the law to do the rest. In fact, the respondent has now
already adhered to one stand and, therefore, it would be advisable that
it completes whatever evidence it has been permitted to lead in the
matter in shortest possible time and extends it's full cooperation with
the Court in expeditious disposal of the complaint.
15. In the result, there is no merit in the application and it
deserves to be rejected.
The application stands rejected.
JUDGE
Print Page
attention to the law laid down by the Hon'ble Apex Court in the case of
Mohanlal Shamji Soni Vs. Union of India and another reported in 1991
CRI. L. J. 1521 in order to support his contention that the said order
only enables the respondent firm to fill up the lacunae in this case,
which is not a permissible ground for allowing the application filed
under Section 311 Cr. P. C. No doubt, the law as laid down in the case
of Mohanlal Shamji Soni is well settled law and it propounds the
principle that even though power under Section 311 Cr.P.C. is very
wide and without any restriction, it must be exercised with due care
and the Court should not be oblivious of the fact that the power is
circumscribed by the principle that evidence to be obtained must
appear to the Court essential for reaching a just decision of the case by
getting at the truth by all lawful means and as such the exercise of the
power should not be capricious or arbitrary. The impugned order
shows that this very principle of law has been followed by the learned
Magistrate in its letter and spirit. He has found that Santosh Taori
always claimed to be partner of the complainantfirm, which claim was
disputed by the applicant and, therefore, if any additional evidence
was sought to be led by the respondent for substantiating the assertion
that Santosh Taori was partner of the complainantfirm, it would not
amount to any attempt to filling up the lacuna, and rightly so. No
illegality or infirmity or judicial impropriety can be seen in these
findings which stand at the base of the grounds on which application
vide Exh.76 has been allowed by the learned Magistrate by the order
passed on 15/01/2013. It is also seen that the learned Magistrate has
drawn support from the case of Milind Shripad Chandurkar Vs. Kalim
M. Khan & another reported in 2011 AIR SC 1588, wherein the fact
situation was almost similar in the sense that identity of the
complainant as a sole proprietor of the concern to whom a
dishonoured cheque was issued was in question and since it was not
established appropriately by the complainant, although he had an
opportunity to adduce evidence in that regard at the early stage or the
belated stage, the Hon'ble Apex Court acquitted the accused in that
case. Drawing of support from this case by the trial Court cannot be
considered to be inappropriate in view of the observations of the
Hon'ble Apex Court that efforts ought to have been taken by the
complainant in the said case of Milind Shripad Chandurkar for leading
additional evidence either before the trial Court or at appellate stage.
Therefore, I do not see any illegality or impropriety in the order passed
on 15/01/2013. This order, I must say, appears to be necessary for
reaching a just decision in the case and as such calls for no interference
with it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 104 OF 2013
Anil s/o Govindrao Chaudhari
.. Versus ..
M/s Taori Marketing,
CORAM : S. B. SHUKRE, J.
DATED : 6th JANUARY, 2015.
Citation; 2015 CRLJ(NOC)465 BOM, 2015(1)BomCR(Cri)763,2016 ALLMR(cri)1090
4. By this application, the applicant has challenged legality
and correctness of two orders passed by the Court of Judicial
Magistrate, First Class, Nagpur on 14/9/2012 and 15/01/2013.
5. The facts leading to presentation of the application may be
stated in brief as under.:
5.1 The respondent initiated proceedings for
dishonour of cheque issued to it by the applicant towards
satisfaction of the applicant's liability on account of
purchase of some goods by the applicant from the
respondent on credit, under Section 138 of the Negotiable
Instruments Act. The affidavit in evidence was filed by the
respondent on 06/01/2011 and he was also crossexamined
by the applicant on 26/8/2011.
5.2 Few days later i.e. on 30/8/2011 the respondent
moved an application vide Exh.46 seeking leave of the
Court to examine partner of the respondentfirm,
Satyanarayan Taori as its witness on the ground that the
applicant had denied execution of power of attorney in
favour of P.W.1 Krishna Shriramji Takalkhede and had
denied the existence of the firm. This application was
partly allowed by the trial Court on 09/12/2011. The trial
Court allowed the respondent to examine its partner
Satyanarayan Taori only for the purpose of proving of the
power of attorney. The other purpose for which the partner
was sought to be examined as witness of the respondentfirm,
however, was not served by the said order.
5.3 Thereafter, the respondentfirm filed another
application vide Exh.52 with almost a similar prayer. It was
contended in this application that since the applicant had
disputed delivery of goods and balance amount, it was
necessary to prove the same by adducing proper evidence
and, therefore, permission was sought for leading the
evidence of the partner of respondentfirm fully in all
respect. This application was rejected by the trial Court by
an order passed on 28/3/2012.
5.4 The respondent, without getting tired of filing
any more applications, filed yet another application (Exh.
55) on 06/8/2012 with a prayer which was, though
expressed in different words, sought the same relief as in
application vide Exh.52. It was contended in this
application that since the applicant had disputed the
delivery memo and bills, it was necessary to prove the same
by examining Santosh Taori, another partner of respondentfirm
and accordingly leave of the Court was sought for
examining Santosh Taori as witness of the respondentfirm.
This application was, however, allowed by the learned
Magistrate by order passed on 14/9/2012. It appears that
this order was not challenged by the applicant by filing any
revision application or by resorting any other appropriate
remedy.
5.5 After allowing of the application vide Exh.55,
Santosh Taori, partner of the firm was examined as witness
of the respondentfirm and was also crossexamined by the
applicant. Thereafter, the evidence of the complainant was
closed and the matter was fixed for arguments.
5.6 When the case was pending at the stage of
arguments, on 11/01/2013, respondentfirm once again
filed another application vide Exh.76 seeking permission of
the Court to adduce additional evidence by invoking its
power under Section 311 of the Criminal Procedure Code.
This application, by the order passed on 15/01/2013, was
allowed by the learned Magistrate on payment of costs of
Rs.1,200/. It was found by the learned Magistrate that
grant of permission to the respondentfirm to examine its
banker as its witness was necessary for reaching a just
decision in the matter.
5.7 It was the order which was passed on
15/01/2013 granting permission to the respondentfirm to
summon its banker as a witness under Section 311 Cr.P.C.,
which made the applicant file the present application under
Section 482 Cr. P.C. In the process, the applicant has also
challenged the order passed earlier on 14/9/2012 below
application vide Exh.55.
6. Learned Counsel for the applicant submits that earlier order
dated 14/9/2012 passed below application (Exh.55) amounted to
nothing but review of own orders of the Court passed on 09/12/2011
below Exh.46 and 28/3/2012 passed below application Exh.52. He
submits that the order dated 14/9/2012 is particularly a review order
of the one passed on 28/3/2012 on the application Exh.52. According
to him, by application (Exh.52) the respondentfirm had sought leave
of the Court to examine its partner as a witness on the ground that
existence of the partnership firm was denied and delivery of the goods
and balance amount had also been disputed by the applicant. This
application was rejected in its entirety by the order passed on
28/3/2012 by the learned Magistrate and, therefore, another
application seeking permission of the Court to examine Santosh Taori,
one of the partners of the respondentfirm as witness to prove almost
the same facts itself was not tenable as what it sought in effect was
review of the order passed on 28/3/2012. He submits that there is no
provision in the Criminal Procedure Code conferring any power upon
the Court of J. M. F. C. to review its own order which has attained
finality. He submits that the order summoning the person to lead
additional evidence or refusing a person to be summoned as a witness
attains finality by virtue of it being not challenged in any manner in
the superior Court by resorting to appropriate remedy and, therefore,
judicial propriety would require that it should not be reopened. In
support, he places his reliance upon the case of Hindustan
Construction Co. Ltd. and another Vs. Gopal Krishna Sengupta and
others reported in AIR 2003 SC 3536.
7. Learned Counsel Shri Dani for the respondent submitted
that in the first place the order passed on 14/9/2012 did not amount
to review of any of the earlier orders passed by the trial Court much
less review of the order passed on 28/3/2012 for the reason that the
application below Exh.55 on which order dated 14/9/2012 was passed
was moved on altogether different grounds. He submits that in the
earlier application vide Exh.52, which was rejected by the order dated
28/3/2012 so also the application vide Exh.46, which was rejected by
the order passed on 9/12/2011, name of the partner, Santosh Taori
was not mentioned and no prayer was made for examining Santosh
Taori as witness of the respondentfirm. He further submits that, even
otherwise, it would be proper for this Court while exercising its
extraordinary jurisdiction under Section 482 Cr. P. C. to not interfere
with the order passed on 14/9/2012, which has already attained its
finality, it having not been challenged in any manner by the applicant
previously. He further submits that in fact the order passed on
14/9/2012 had been acted upon by the parties as the applicant by
crossexamining Santosh Taori had participated in the proceedings
before the trial Court and thus he can be said to have waived whatever
rights he may had in law in this regard. He also submits that it is not
the case of the applicant that by the order passed on 14/9/2012, any
prejudice has been caused to the rights of the applicant in the sense
that the defence taken by the applicant has been washed away.
Therefore, this is not a fit case for making any interference in the order
passed on 14/9/2012, so submits the learned Counsel for the
respondent.
8. Upon considering all the orders passed by the trial Court,
which orders are of the date 09/12/2011 passed below application
vide Exh.46, 28/3/2012 passed below application vide Exh.52 and
14/9/2012 passed below application vide Exh.55, I find that the order
lastly passed on 14/9/2012 can be considered to be an order which
effectively reviewed the order passed by the trial Court on 28/3/2012
below application (Exh.52). The order passed on 28/3/2012 was on
an application which prayed for grant of leave to examine any of the
partners of the respondentfirm as its witness and this application was
rejected in its entirety by the order passed on 28/3/2012. By the
subsequent application vide Exh.55, although the respondent did not
pray in so many words that any of its partners should be allowed to be
examined as its witness, the respondent sought permission of the Court
to lead evidence of Santosh Taori, one of the partners of the
respondentfirm to prove some of the facts which were disputed by the
applicant. This application was expressed in different words but it
carried the same purport and meaning as previous application vide
Exh.52. Therefore, learned Magistrate ought to have considered the
aspect as to whether allowing of the said application would amount to
review of his own order passed earlier on similar application or not. It
appears that learned Magistrate has not given any thoughtful
consideration to this aspect. This order not being in accordance with
law has to be held as incorrectly passed.
9. The question, however, remains as to whether or not any
exercise of extraordinary jurisdiction of this Court under Section 482
Cr.P.C. to interfere with the order passed on 14/9/2012 would be
warranted. The answer to this question could have been in the
affirmative had it been the case that the order passed on 14/9/2012
had not attained any finality and had been subjected to challenge by
the applicant by resorting to appropriate remedy before it was acted
upon not only by the respondent but also by the applicant. That is
unfortunately not the case here. The applicant has allowed the order
to become final by not challenging it by filing any revision application
or appropriate proceedings. Rather, the applicant allowed the
respondent to lead evidence of Santosh Taori and also participated in
the proceedings before the trial Court by crossexamining Santosh
Taori. In such a situation, judicial propriety requires that the matter is
not allowed to be reopened.
10. There is also another angle from which this matter needs to
be examined. It is of causing of prejudice to the defence of the
applicant by the order passed on 14/9/2012. I do not find that any
such prejudice has been caused to the defence of the applicant by the
order passed on 14/9/2012. The order has also not led to any
miscarriage of justice, rather the order has only subserved the purpose
of justice by allowing the parties to lead best possible evidence and
enable the Court to arrive at just decision in the dispute between the
parties. From this view point as well, I do not think that it would be
appropriate for this Court to exercise its jurisdiction under Section 482
Cr. P. C. by interfering with the order passed on 14/9/2012. It must
be remembered that jurisdiction of this Court under Section 482 Cr. P.
C. is extraordinary in nature and it calls for extraordinary situation for
its appropriate exercise. As said earlier, there being no prejudice
caused to the defence of the applicant and no miscarriage of justice
resulting from the order dated 14/9/2012, I am of the view that no
exceptional situation prevails to impel this Court to interfere with the
order dated 14/9/2012 by invoking its power under Section 482 of
the Criminal Procedure Code.
11. It is also well settled law that the jurisdiction of this Court
under Section 482 Cr. P. C. is discretionary in nature and it is not that
in every case it must be exercised only because some illegality is
noticed. The noticed illegality should also be transforming itself into a
situation where there is a failure of justice or gross abuse of power or
deprivation of substantial rights of the parties and if that does not
occur, there would be no reason for the High Court to invoke its power
under Section 482 Cr. P. C. Accordingly, I find that the order dated
14/9/2012 passed below application vide Exh. 55 by the trial Court
cannot be inferred with in this application and the objection taken in
this regard deserves rejection.
12. As regards the second objection of the applicant about
illegality of the order passed on 15/01/2013 allowing banker of the
respondent to be examined as a Court witness under Section 311
Cr. P. C., I must say that the order as passed by the learned Magistrate
is neither perverse nor incorrect nor improper nor in violation of any
settled principles of law.
13. The learned Counsel for the applicant has invited my
attention to the law laid down by the Hon'ble Apex Court in the case of
Mohanlal Shamji Soni Vs. Union of India and another reported in 1991
CRI. L. J. 1521 in order to support his contention that the said order
only enables the respondentfirm to fill up the lacunae in this case,
which is not a permissible ground for allowing the application filed
under Section 311 Cr. P. C. No doubt, the law as laid down in the case
of Mohanlal Shamji Soni is well settled law and it propounds the
principle that even though power under Section 311 Cr.P.C. is very
wide and without any restriction, it must be exercised with due care
and the Court should not be oblivious of the fact that the power is
circumscribed by the principle that evidence to be obtained must
appear to the Court essential for reaching a just decision of the case by
getting at the truth by all lawful means and as such the exercise of the
power should not be capricious or arbitrary. The impugned order
shows that this very principle of law has been followed by the learned
Magistrate in its letter and spirit. He has found that Santosh Taori
always claimed to be partner of the complainantfirm, which claim was
disputed by the applicant and, therefore, if any additional evidence
was sought to be led by the respondent for substantiating the assertion
that Santosh Taori was partner of the complainantfirm, it would not
amount to any attempt to filling up the lacuna, and rightly so. No
illegality or infirmity or judicial impropriety can be seen in these
findings which stand at the base of the grounds on which application
vide Exh.76 has been allowed by the learned Magistrate by the order
passed on 15/01/2013. It is also seen that the learned Magistrate has
drawn support from the case of Milind Shripad Chandurkar Vs. Kalim
M. Khan & another reported in 2011 AIR SC 1588, wherein the fact
situation was almost similar in the sense that identity of the
complainant as a sole proprietor of the concern to whom a
dishonoured cheque was issued was in question and since it was not
established appropriately by the complainant, although he had an
opportunity to adduce evidence in that regard at the early stage or the
belated stage, the Hon'ble Apex Court acquitted the accused in that
case. Drawing of support from this case by the trial Court cannot be
considered to be inappropriate in view of the observations of the
Hon'ble Apex Court that efforts ought to have been taken by the
complainant in the said case of Milind Shripad Chandurkar for leading
additional evidence either before the trial Court or at appellate stage.
Therefore, I do not see any illegality or impropriety in the order passed
on 15/01/2013. This order, I must say, appears to be necessary for
reaching a just decision in the case and as such calls for no interference
with it.
14. Before passing the final order, I must record a word of
caution for the respondent firm. The proceedings in the complaint
filed by the respondent against the applicant are being delayed
apparently and probably for the reason that the respondent firm has
been filing one application after another showing wavering of it's
mind. The respondentfirm shall now do well to take one firm stand
and allow the law to do the rest. In fact, the respondent has now
already adhered to one stand and, therefore, it would be advisable that
it completes whatever evidence it has been permitted to lead in the
matter in shortest possible time and extends it's full cooperation with
the Court in expeditious disposal of the complaint.
15. In the result, there is no merit in the application and it
deserves to be rejected.
The application stands rejected.
JUDGE
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