Criminal Writ Petition No. 381 of 2013

5th July, 2013

Petitioner Counsel: Mr. D.S. BHARUKA
Respondent Counsel: Mr. Y.G. SOMANI

Cases Cited:
Mohanlal Shamji Soni Vs. Union of India and Anr., 1991 CRI.L.J. 1521 (SC) [Para 6]
Rajendra Prasad Vs. Narcotic Cell through Officer-in-charge, AIR 1999 SC 2292 [Para 6]
Fatehsinh Mohansinh Chauhan and Ors. Vs. Union Territory of Dadra and Nagar Haveli and anr., 2003 ALL MR (Cri) 625 =2003 (4) Mh.L.J. 73 [Para 8]
Mangesh Kisanrao Dahe Vs. State of Maharashtra and Anr., 2011 ALL MR (Cri) 3644 [Para 8]
Godrej Pacific Tech Ltd. Vs. Computer Joint India Ltd., 2009 ALL MR (Cri) 948 (S.C.)=AIR 2008 SC (Supp) 591 [Para 8]
M/s. Jagdale Mirch Masala Products (India) Vs. Kamal Foods and Anr., 2010 ALL MR (Cri) 1783 [Para 8]
Karim Hasan Patel Vs. State of Maharashtra and Anr., 2012 ALL MR (Cri) 2378 [Para 8]
Sow.Malan w/o. Navnath Khaire Vs. The State of Maharashtra and Anr., Criminal Writ Petition No. 257 of 2011 [Para 8]

JUDGMENT

JUDGMENT :- The petition is filed to challenge the order made on Exh. 40 of S.T.C. No. 285 of 2009 by Judicial Magistrate, First Class, Ambad, District Jalna in a private complaint filed by respondent for offence punishable under section 138 of Negotiable Instruments Act. The J.M.F.C. has allowed the respondent to file additional evidence by way of one more affidavit and to produce some documents when evidence by way of affidavit was already filed by complainant. Both the sides are heard.

2. It is the case of respondent/complainant that by way of hand, loan at the time of Navratra festival of 2008 he gave Rs. 7 lakh to the accused and this amount was to be returned by the accused within four months. It is contended by the complainant that when after the expiry of the period, he demanded the amount, the accused gave him two cheques of the aforesaid amount. One cheque was of Rs. 4 lakh and the second cheque was of Rs. 3 lakh. It is the case of complainant that both the cheques bounced and bank gave remark that there was no sufficient amount in the account of accused. The complainant followed the procedure laid down in the N.I. Act and he filed the complaint. After issue of process, the accused appeared in the case. The complainant filed affidavit as evidence on 10.3.2010. On 25.2.2013 the complainant filed application for leading additional evidence. He contended that there was some record with him, which was not produced due to oversight and he wanted to give evidence on that record. The record is mainly in respect of so called account, register maintained by the complainant and so called 'Thoka Patra' (agreement made with persons cultivating the land). The complainant want to prove this record to show that at the relevant time he had the amount with him and he had made entry about the transaction of hand loan in the personal account book maintained by him. After hearing both the sides, the J.M.F.C. allowed this application.

3. Copies of relevant record are produced. It is the case of complainant that he is agriculturist. In spite of this circumstance, he wants to prove the entries made in his personal note book with regard to the amounts received by him. He has produce copies of some agreements which are titled as 'Thoka Patra' and these documents are executed by the complainant in favour of one Eknath Bashinge. He wants to prove the entry made in this book on 7.2.2008, when he gave the amount of Rs. 7 lakh to the accused in the presence of one Balaprasad Malani. The name of Malani is mentioned as witness in the complaint.

4. Though it is true that the complainant can use various presumptions given under N.I. Act and he can submit that the cheques were given as against existing liability by the accused, in view of the settled law, he is also expected to make out foundation for the case of liability. The accused has not replied the statutory notice, which was given by the complainant. In view of these circumstances and as cross examination of the complainant is not started, the defence of the accused is not known. So, the complainant wants to file additional affidavit with regard to aforesaid record and he wants to produce the aforesaid record.

5. The recording of evidence of the complainant is not yet over and he had only filed affidavit as his evidence. The cross examination was also not started when the aforesaid application was given. In view of the aforesaid position of law and as no prejudice can be caused to the defence, this Court holds that the J.M.F.C. has not committed any error in allowing complainant to do aforesaid things. There will be opportunity to accused to cross examine the complainant in respect of additional affidavit and also in respect of the documents which are allowed to be produced.

6. The learned counsel for petitioner relied on some reported case. In the case reported as 1991 CRI.L.J. 1521 (SUPREME COURT) [Mohanlal Shamji Soni Vs. Union of India and Anr.], the Apex Court has observed that the power given under section 311 of Cr.P.C. (old section 540) need to be used judiciously and not capriciously or arbitrarily. It is observed that such power should not be used by the Court for filling up the lacuna left by prosecution, to the disadvantage of the accused and which may cause serious prejudice to the defence of the accused. There cannot be dispute over the proposition made by the Apex Court. The facts of the present case are altogether different. The relevant facts are discussed by this Court. On this point, reliance was placed by other side on the case reported as AIR 1999 SUPREME COURT 2292 [Rajendra Prasad Vs.Narcotic Cell through Officer-in-charge, Delhi]. In this case, the Apex Court has observed that mistakes or latches in conducting the case by public prosecutor cannot be understood to mean lacuna in prosecution case. The Apex Court has made following observations :-

"6. ...............A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up.

7. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

7. In the present case, there was no inherent lacuna as such in the case and further, the cross examination of the complainant was not started by defence. The case as required for offence punishable under section 138 of N.I. Act is made out in the complaint and also in the affidavit and only the foundation for the case of liability needs to be made out. So this Court holds that by giving such opportunity, the J.M.F.C. has not committed any error.

8. The learned counsel for petitioner placed reliance on the observations made by this Court in the cases reported as 2003 (4) Mh.L.J. 73 : [2003 ALL MR (Cri) 625] [Fatehsinh Mohansinh Chauhan and Ors. Vs. Union Territory of Dadra and Nagar Haveli and anr.] and 2011 ALL MR (Cri) 3644 [Mangesh Kisanrao Dahe Vs. State of Maharashtra and Anr.]. In both the cases this Court has discussed the power under section 311 of Cr.P.C. It is observed that lacuna in investigation cannot be overcome by the prosecution by taking recourse to provision of section 311 of Cr.P.C. Further, it is observed that the power under section 311 can be exercised for just decision of the case. On the same point the learned counsel for respondent cited few reported cases as (i) AIR 2008 SC (Supp) 591 : [2009 ALL MR (Cri) 948 (S.C.)] [Godrej Pacific Tech Ltd. Vs. Computer Joint India Ltd.], (ii) 2010 ALL MR (Cri) 1783 [M/s. Jagdale Mirch Masala Products (India) Vs. Kamal Foods and Anr.] and (iii) 2012 ALL MR (Cri) 2378 [Karim Hasan Patel Vs. State of Maharashtra and Anr.]. Copy of the order made by this Court, Aurangabad Bench in Criminal Writ Petition No. 257 of 2011 [Sow.Malan w/o. Navnath Khaire Vs. The State of Maharashtra and Anr.] is also produced. In all these case, the power of the Court under section 311 of Cr.P.C. is considered. This Court has observed that the administration of justice cannot be permitted to be frustrated on mere hyper technicalities. This Court has observed that the permission to file even additional affidavit can be granted by using section 311 of Cr.P.C.

9. The discussion made above shows that due to oversight some evidence was not given by the complainant and for just decision of the case such evidence needs to be given. The circumstance like absence of reply from the side of accused is also there due to which such precautionary measures can be taken by the prosecution side.

10. In the result, the petition stands dismissed.

Petition dismissed.