Manidhari Stainless Wires Pvt. Ltd., v. Ashok Commercial Enterprises Through Ramesh Uttamchand Ramchandani And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2078 OF 2022 Manidhari Stainless Wires Pvt. Ltd. and Ors.

...Petitioners

Versus

Ashok Commercial Enterprises through Ramesh Uttamchand Ramchandani and Anr.

...Respondents

....

Mr. Kunal Kumbhat a/w Ms. Hemangi Mehta i/by Ms. Sunanda Kumbhat, Advocate for the Petitioner.

Mr. Ajeet Manwani i/by A & A Legal, Advocate for the Respondent No.1 Mr. Arfan Sait, APP for the Respondent - State. CORAM : PRAKASH D. NAIK, J.

DATE : 19th AUGUST, 2022.

P.C.

1.

The Petitioners are prosecuted for an offence under Section 138 of Negotiable Instruments Act, 1881 (for short N.I. Act) vide C.C. No. 4364/SS/2014 pending in the Court of learned Metropolitan Magistrate, 33rd Court, at Ballard Pier, Mumbai. 2.

The Respondent No.1 is the complainant. It is alleged that the complainant had disbursed as loan on short term basis an amount of Rs.1,00,00,000/-(Rupees One Crore) in favour of Petitioner No.1. The Accused issued ten cheques signed by Petitioner No.2 as Director in the sum of Rs.1,00,00,000/-(Rupees One Crore) towards by SUNNY ANKUSHRAO THOTE Date:

2023.02.02 17:50:59 +0530 SUNNY ANKUSHRAO THOTE repayment of the loan in favour of complainant. The complainant deposited the said cheques with its banker on 21st June, 2014. Vide memo dated 24th June, 2014, the cheques were dishonoured for the

reason "Funds Insufficient". The accused assured about payment of cheques and hence action was not initiated. Subsequently, the cheques were redeposited by the complainant on 15th July, 2014. The cheques were dishonoured on 17th July, 2014 on account of insufficient funds. Notice under Section 138 of N.I. Act, was issued to the Accused and since the payment was not issued, complaint was filed.

3.

The verification statement of complainant was recorded. The learned Magistrate by Order dated 29th December, 2017 issued the process against the Accused for the offence under Section 138 of N.I. Act. Affidavit of evidence/examination-in-chief of complainant was filed before the trial Court on 24th August, 2018. The documents filed alongwith affidavit of evidence were marked as Exhibit on the same day.

4.

The Petitioners had challenged the Roznama Order dated 24th August, 2018 exhibiting the documents by preferring Criminal Revision Application No.1012 of 2018. Vide Order dated 25th October, 2018 the learned Additional Sessions Judge admitted the revision application and stayed the proceedings pending before the Court of learned Magistrate till further orders. 5.

The learned Additional Sessions Judge vide Order dated 17th December, 2018 rejected the Revision Application No.1012 of 2018

and stay granted to the proceedings pending before the lower Court was vacated. While passing the said Order it was observed that, though the matter was kept on that day for the arguments, till 3:30 p.m., the Advocate for the Applicants is absent in the Court. The Applicants is also absent. Therefore, his argument is treated as heard. It was also observed that the complainant had produced certain documents with affidavit and it is the duty of the Magistrate to mark them as exhibits. It is settled law that for the secondary evidence, there is no need of permission of the Court and the party can produce secondary evidence on record. When the complainant is ready to produce on record all the original documents, the question gets over. Mere exhibition of the documents does not mean that the contents are proved.

Exhibition of documents is for the purpose of reference to that does not mean that contents are proved. Merely because the documents are marked as exhibits by the Court, does not by any stretch of imagination be construed that the contents are proved. The accused will definitely get chance in the crossexamination to contradict the said documents from the material on record and then it is for the learned Magistrate to see whether the documents are admissible or not and even if admissible or not and even if admissible, whether the contents are proved or not.

documents are marked as exhibits. Therefore, the Order of learned Metropolitan Magistrate is legal, proper and correct. 6.

The Petitioners preferred an application Exh.-31 for Deexhibiting documents on 20th December, 2018 which were Exhibited on 24th August, 2018. It was contended that the Advocate for complainant filed affidavit of evidence and compilation of documents on 24th August, 2018 before serving the copy of affidavit of evidence and compilation of documents on the Advocate for Accused who was present before this Court. The Court had passed the Order marking all the documents in the compilation filed by Advocate for complainant as exhibits, and no opportunity of giving a say on documents filed by complainant was afforded to the Accused. The document at serial No.1 of compilation was marked without the same being proved as per Bankers Book Evidence Act.

No sufficient explanation as to production of copies instead of original and no requisite averments to that effect in the affidavit in evidence was given. The deponent is not signatory to documents at serial No.2 and no proper averments made in respect of the same are made in the affidavit of evidence. Document at serial No.3 to 8 are copies and no proper averments have been made in affidavit of evidence and no permission has been sought in the affidavit for leading secondary evidence.

No.1012 of 2018 filed before Session Court was dismissed for default and not decided on merits. Grave prejudice would be caused to the Accused if the application is not allowed. Learned Magistrate allowed the application vide order dated 20th December, 2018 and De-exhibited documents at Exh.16 to 30.

7.

The Respondent No.1 challenged the Order dated 20th December, 2018 before the Sessions Court for Greater Bombay by preferring Criminal Revision Application No.466 of 2021. There was delay of 153 days in filing the revision application. The Respondent No.1 preferred Criminal Misc. Application No.2103 of 2019 for condonation of delay. The learned Additional Sessions Judge allowed the application for condonation of delay vide Order dated 17th September, 2021 and condoned the delay in filing revision application. While allowing the said application it was observed that the Roznama dated 20th December, 2018 goes to show that Exh.-31 is application for de-exhibiting documents. The said Roznama does not show that say of other side was called on Exh.-31. It also does not show any reason for not calling say. The Roznama indicate that Exh.16 to 30 are De-exhibited. Roznama dated 20th December, 2018 does not show that any reasons were recorded for allowing application. The Roznama dated 20th December, 2018 on one hand shows that Revision Application No.1012 of 2018 is rejected and on

the other hand without calling for say of the complainant, the same appears to have been allowed. This itself is gross illegality. The revision application preferred by the Accused was rejected and the question is how such documents can be De-exhibited by the trial Court after the rejection of the revision application. The learned Sessions Judge condoned the delay of 153 days in filing revision application and directed that the revision application may be registered.

8.

The learned Sessions Judge allowed the Criminal Application No. 466 of 2021 preferred by Respondent No.1 vide Order dated 9th May, 2022. The Order dated 20th December, 2018 passed by learned Magistrate was set aside. While allowing the said revision application it was observed that it appears that when the affidavit was filed alongwith affidavit of evidence, documents were filed and the same has been exhibited on 24th August, 2018. The Petitioners preferred Revision Application No.1012 of 2018 before the Sessions Court which was dismissed on 17th December, 2018 and the said Order has attained finality. The Roznama dated 20th December, 2018 in the proceedings before the trial Court makes note of the fact that Revision Application No.1012 of 2018 is rejected. Application Exh.-31 was allowed on the date of its filing and order was passed De-exhibiting documents. There is nothing on record to show that

opportunity of hearing was given to the complainant. The learned Magistrate was aware of the fact that the revision application filed by the accused challenging the Order exhibiting documents was dismissed and that the Order dated 24th Auguts, 2018 was confirmed by the revisional Court. The application for De-exhibiting the documents ought not have been entertained. The learned Magistrate has travelled beyond the Order of revisional Court and committed mistake apparent on the face of record. The Order dated 20th December, 2018 is contrary to the findings in Revision Application No. 1012 of 2018. The learned Sessions Judge allowed the Criminal Revision Application No.466 of 2021 and set aside the Order dated 20th December, 2018 passed by learned Magistrate. 9.

The learned Advocate for the Petitioners submitted that the Order dated 24th August, 2018 is contrary to law. The documents were exhibited without following due process of law. The documents were not proved. No opportunity was given to the Petitioners to oppose exhibiting documents on 24th August, 2018. The learned Magistrate has rightly de-exhibited the documents vide Order dated 20th December, 2018. Section 294 of Cr.P.C. was not complied. The directions issued by this Court in the case of Peacock Industries Ltd. & Ors. V/s. Budhrani finance Lts. & Ors. 2006(2) Bom. C.R. (Cri.) 368 were not followed. The direction no. 'm' requires that the Court

must call upon the Accused and his pleader, as provided under Section 294 of Code, to admit or deny the genuineness of the documents, other than the documents which have presumptive value in law. That would help the complainant to know which of the documents he will have to prove by adopting such mode as may be advised. The procedure under Section 294 should be followed before the complainant files his affidavit under Section 145(1) of the Act. No intimation about the filing of such documents by way of affidavit in evidence was given to the Accused. Learned Sessions Judge has proceeded to hear Criminal Revision Application No.1012 of 2018 and decided the same in the absence of the Petitioners. The order dated 9th May, 2022 setting aside order dated 20th December, 2018 is contrary to law.

10.

Learned Advocate for Respondent No.1 submitted that the Order dated 20th December, 2018 is bad in law. Despite rejection of revision application preferred by the Petitioners vide Order dated 17th December, 2018, the learned Magistrate allowed the application Exh.31 and De-exhibited the documents. The learned Magistrate ought not to have entertained the application Exh.-31 after dismissal of the revision application preferred by the Petitioners. The Order dated 17th December, 2018 as well as 9th May, 2022 passed by the Sessions Court are legal and does not require interference. The

Order dated 20th December, 2018 was passed without assigning reasons and without hearing the complainant. The learned Magistrate was aware that Criminal Revision Application No. 1012 of 2018 preferred by the Petitioner was rejected by the Sessions Court vide Order dated 17th December, 2018. This fact is spelt out in the Roznama dated 20th December, 2018. The learned Sessions Judge had assigned reasons for rejecting the revision application preferred by the Petitioners and allowed the revision application preferred by the Respondent No.1. The Petitioners are delaying the trial. After exhibiting the documents the case was pending for crossexamination.

The complainant had filed additional affidavit and additional compilation which were marked as Exhibit-32 and 33 before the trial Court and the said fact was informed to the Advocate for Petitioners vide Advocate is letter dated 17th September, 2018 that the complainant will be placing on record the original documents and forwarded additional affidavit of evidence and original compilation of documents. The Petitioners sought ex parte stay by preferring Criminal Revision Application No.1012 of 2018 on 16th October, 2018. Interim stay was granted by the Sessions Court. The complainant filed M.A. No. 2402 of 2018 in C.R.A. No.

Petitioner's Advocate on 21st September, 2018. The Respondent No.1 proceeded with filing of affidavit in evidence marked as Exh.-32 with additional compilation of documents marked as Exh.-33. When the Petitioners called upon for admission/denial of application, Petitioners informed the Court on 1st August, 2019 that the marked by the trial Court under Exh.-16 to 30 have been De-exhibited. The Petitioners moved an application dated 1st August, 2019 for discarding the affidavit of evidence. The Petitioners initially did not press the aforesaid application dated 1st August, 2019 marked as Exh.-34 but subsequently filed pursis to persue the said application. The original compilation of documents filed on 24th August, 2019 consisted of original dishonoured cheques with memo at Exh.-17 to 26 and the copy of notice sent to Petitioners at Exh.

28. The fact that the documents were De-exhibited was known to complainant on 1st August, 2019. The applicability of Section 294 of Cr.P.C. does not arise as the documents submitted were alongwith affidavit of evidence as per the scheme of Section 145 of N.I. Act. The Order dated 17th December, 2018 was challenged belatedly in this Petition. Section 139 of the N.I. Act prescribes presumption in favour of holder of cheques.

11.

The proceedings relates to offence under Section 138 of N.I. Act. The complainant filed affidavit of evidence alongwith

documents. The documents were exhibited on 24th August, 2018. The Roznama Order dated 24th August, 2018 was challenged by the Petitioners by preferring Criminal Revision Application No.1012 of 2018. Vide Order dated 25th October, 2018 the learned Sessions Judge granted stay to the proceedings before the trial Court. Subsequently, learned Session Judge rejected Criminal Revision Application No.1012 of 2018. It was rightly observed that the exhibition of documents does not mean that the contents are proved. The Accused will get chance to cross-examine to contradict the documents from the material on record and it will be for trial Court to decide whether the documents are admissible or not and even if admissible, whether the contents are proved.

Inspite of knowing the fact that revision application was dismissed, the Petitioner preferred an application Exh.-31 on 20th December, 2018. In the said application it was erroneously stated that Criminal Application No.1012 of 2018 filed before the Sessions Court is dismissed for default and not decided on merits. This assertion was contrary to the Order dated 17th December, 2018. Once the revision application was rejected by the Sessions Court wherein the Order dated 24th August, 2018 exhibiting documents was under challenge, there was no propriety in preferring application before the learned Magistrate for De-exhibiting the documents.

2018 was dealing with the merits of the revision application and by no stretch of imagination it can be said that the revision application was dismissed for default. The statement in application Exh.-31 was misleading. The Order dated 17th December, 2018 at the most could have been challenged before higher Court by the Petitioners. The Roznama dated 20th December, 2018 indicate that the revision application No.1012 of 2018 has been rejected by the Sessions Court. The contents of application Exh.-31 and Roznama dated 20th December, 2018 makes it clear that learned Magistrate was aware that the revision application preferred by the Petitioners has been rejected. Propriety did not warrant entertaining application Exh.-31. The Order dated 20th December, 2018 passed at Exh.31 does not assign reasons for De-exhibiting the documents.

It is cryptic. It does not indicate that the complainant was called upon to oppose the said application. The complainant was not heard. The Order was clear violation of principle of natural justice. The documents are exhibited vide Order dated 24th August, 2018 and the learned Magistrate ought not to have recalled the said Order. The Order dated 17th December, 2018 passed by the learned Sessions Judge has been challenged before this Court belatedly, after the Order dated 20th December, 2018 has been set aside by the Sessions Court vide Order dated 9th May, 2022. While allowing the Revision Application No.

the learned Sessions Judge has assigned cogent reason. The Order does not call for interference.

12.

I do not find any infirmity in the Order dated 17th December, 2018 passed by the Sessions Judge in Criminal Revision Application No.1012 of 2018 and Order dated 9th May, 2022 passed by the Sessions Court in Criminal Revision Application No.466 of 2021. The cross-examination of the complainant was due. The Accused had opportunity for cross-examining the complainant and and deal with the documents exhibited in evidence.

13.

In the case of Peacock Industries Ltd. & ors. Vs. Budhrani Finance Ltd. & ors. (supra) this Court referred to decisions of Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder V/s Arulmigu Viswesaraswami and V.P. Temple, AIR 2003 S.C. 4548 and Bipin Shantilal Panchal V/s. State of Gujrat, AIR 2001 S.C. 1158. In the matter under consideration it was observed that, application for De-exhibiting certain documents, was filed after five months, after filling of the affidavit in examination in chief and marking all the documents as exhibits by the Magistrate. The cross-examination of the witness has not began. It is possible in that case to the Court to consider the objections a fresh and if they are directed towards the mode of proof being irregular or insufficient, the Court may Deexhibit those documents and mark them for identification. In that

eventuality if the complainant files an application under Section 145 (2), the Magistrate must consider such application in the light of the observations in that Judgment before directing the accused to crossexamine the witness. In so far as the documents of which an admissibility only is in dispute those documents need not be Deexhibited and the issue of their adminissibility be kept open to be addressed at the stage of arguments and to be decided in the final Judgment. This Court issued guidelines / directions for the trial Courts while dealing with complaint under Section 138 of Negotiable Instruments Act. Guideline No.

L mentions that the complainant should as far as possible file copies of all relevant and necessary documents with the complaint duly attested/endorsed by him or his Advocate as true copies and keep originals ready for perusal of the Court at the stage of verification and issue of process. As per guideline 'M' the Court must call upon the accused or his pleader as provided under Section 294 of Code, to admit or deny the genuineness of documents, other than the documents which have presumptive value in law. That would help the complainant to know which of the documents he would have to prove by adopting such mode, as may be advised, during his own or his witnesses examination-in-chief on affidavit.

Section 145 (1) of the Act. As per Guideline No. (P), the complainant should file his affidavit in lieu of examination-in-chief with all the documents to be exhibited in the Court. The Affidavit should be in the form, as if he is giving oral evidence in the Court, proving all the documents objected to by the accused and it should not be, in any case, in the form of written argument and avoid reproduction of the complaint as it is. The Court on the very date shall see that the copy of affidavit with all proposed exhibits is served on the accused and grant time if prayed, to enable the accused to read it and raise an objection, if any, regarding admissibility of documents or any item of evidence.

On the adjourned date, the accused should place his written objection, if any, on record which the Magistrate should make note of and mark the objected documents. Other than the documents which have presumptive value in law tentatively as exhibits, as observed in Bipin Panchal's case or marked it for identification, where the objection is regarding mode of proof, alleging the same to be irregular or insufficient to be decided at the stage of final Judgment.

cross-examine the witness without prejudice to such objection. As per guideline (q) if the objection is with regard to the mode of proof in respect of any of the documents, (other than the documents which have presumptive value in law) alleging the same to be irregular or insufficient the Court should allow the complainant on his application made under sub-Section(2) of Section 145, before his cross-examination begins, to lead further evidence by stepping into witness box to cure the defect and adopt such mode as would be regular and sufficient. The cases where the complainant does not make application under Section 145(2), the Court should mark it for identification and defer the decision on such objection to be decided at the stage of final Judgment.

14.

In the case of Geeta Marine Services Pvt. Ltd. & Anr. Vs. State & Anr. (Supra) this Court made reference to decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal V/s. State of Gujrat (Supra) wherein Court issued guidelines regarding proof or admissibility of documents. Reference is also made to decision in the case of R.V.E. Venkatachala Gounder V/s. Aruligu Vishwesaraswami and V.P. Temple (Supra) wherein observations in the case of Roman Cathollic Mission V/s. State of Madras and Anr. AIR 1966 SC 1457 were quoted. This Court observed that, Apex Court has Categorized the objections raised to the documents into two classes. One is

where admissibility of documents in evidence is not in dispute, but it is contended that, the documents is not proved or the proof in support of documents is insufficient. The second category of objection is that the document which is sought to be proved is itself inadmissible in evidence. The Apex Court held that in so far as the first category where dispute is of proof of documents, the objection should be taken at the earliest and the objection that the mode adopted for proving the documents is irregular or insufficient cannot be allowed to be raised at any stage subsequent to the marking of documents as exhibit.

In so far as the objection that documents is not properly proved, the Apex Court observed that if the said objection is raised at the outset, it enables the Court to apply its mind and pronounce its decision on the question then and there. In the event of finding of the Court on issue of proof of document going against the party tendering the document in evidence, an opportunity of seeking indulgence of the Court for leading further evidence to prove the document adopting proper mode is available. In so far as the second category of objection is concerned, the Apex Court held that even if document is marked as exhibit, an objection simplicitor as to its admissibility is not excluded and is available to be raised at latter stage.

and 34 of chapter VI. Reference is made to other decisions of Apex Court in the case of Seth Tarajee Khimchand and Others V/s. Yelamarti Satyan Alias Saheya and others (1972) 4 SCC 562, and Narbada Devi Gupta V/s Birendra Kumar Jaiswal and Another (2003) 8 SCC 745. In the aforesaid decisions it was held that, mere marking or an exhibit does not dispense with the proof of the documents. Mere production and marking of a document as exhibit by Court cannot be held to be a due proof of its contents. This Court than concluded that, on plain reading of decision of Apex Court in the case of Bipin Panchal (Supra), it is apparent that, same does not deal with an objection as regards proof of a documents or insufficiency of proof or incorrect mode of proof.

The said Judgment deals with objection regarding admissibility of the documents in evidence which is a separate category of objection as distinguished from an objection regarding proof as laid down by the Apex Court in the case of R.V.E. Venkatachala Gounder (Supra). It is true that, the procedure laid down by the Apex Court in the case of Bipin Panchal (Supra) will have to be followed by Courts. However, the said decision is applicable to only one category of objection regarding admissibility of documents in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode or proof of a document.

affidavit of examination-in-chief and after recording formal examination-in-chief of the concerned witness, an objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof, it has to be dealt with immediately by the Magistrate before proceeding with recording of cross-examination. Only in a case where the adjudication involves a decision on complicated questions which require a very detailed adjudication it can be postponed till final hearing.

In a case where a document is proved in accordance with Evidence Act but an objection is raised to the admissibility of the said document, as held by Apex Court in the case of Bipin Panchal (Supra), such document can be tentatively marked as an exhibit as objection to the admissibility can be decided at the stage of final hearing as contemplated in the decision of Bipin Panchal (Supra). If objection regarding proof of a document is decided, the complainant or accused who has produced the said documents is put to the notice that the document is not held as proved so that he can seek indulgence from the Court of leading further evidence. This avoids possibility of parties applying at the stage of Judgment for recalling the witness or for leading further evidence for proving a document.

law of evidence.

15.

In the case of Radheshyam Garg V/s. Naresh Kumar Gupta (supra) the Hon'ble Supreme Court has observed that Section 145 of Negotiable Instruments Act contains a non-obstante clause. The provisions of code of criminal procedure 1973 are, thus not attracted. The Court, subject to just exceptions, may allow the complainant to give evidence by way of affidavit. Such an evidence by way of affidavit had been made admissible in evidence in any inquiry, trial or other proceedings under the code. Whereas subSection (1) of Section 145 uses the term 'may' Sub-Section (2) there of uses the term 'shall'. The first part of the above provision must be read with Sub-Section (1) of Section 145. It, therefore, merely, points out to the discretionary power of the Court conferred upon it by reason thereof.

There is no justification for arriving at a finding that a witness can again be summoned for his examination in chief in the Court despite affirming affidavit in that behalf. The scope of Section 145 came up for consideration before the Apex Court in Mandvi Co-operative Bank Ltd. V/s. Nimesh Thakore (supra).

is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the Court, the claim of the accused that on being summoned under Section 145(2), the complainant or any of his witnesses whose evidence is given on affidavit must be made depose in examination-in-chief all over again plainly appears to be a demand for meaningless duplication, aimed at delaying trial. Section 145(2) does not indicate that, person giving his evidence on affidavit, on being summoned at the instance of accused must start his deposition. 16.

In the case of Indian Bank Association & Ors. Vs. Union of India & Ors.(Supra) it was observed that legislature had noticed that the introduction of Section 138 to 142 of the Act has not achieved desired results for dealing with dishonored cheques. Hence, Sections 143 to 147 were inserted in the Act vide Negotiable Instruments (Amended) Act, 2002 for speedy disposal of cases relating to dishonor of cheques through summary trial. However, no uniform practice is seen to be followed by the various Magistrate Courts in the Country, as a result of which, the object and purpose for which the amendments were incorporated, have not been achieved under Section 145 of the Act the complainant can give his evidence by way of affidavit and such affidavit shall be read in evidence in inquiry,

trial or other proceedings in the Court, which makes it clear that the complainant is not required to examine himself twice i.e. one after filing the complaint and one after the summoning of accused. Affidavit and the documents filed by the complainant alongwith the complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post-summoning stage. There is no necessity to recall and reexamine the complainant after summoning of accused. Unless the Magistrate passes specific order as to why the complainant is to be recalled. Such order can be is to be passed on application made by accused under Section 145(2) of the Act or Suo moto by the Court. The Court issued directions to be followed by Courts in matters under Negotiable Instruments Act. The direction No.

1 in the said decision indicates that the Magistrates, on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and if the complaint is accompanied by the affidavit, and the affidavit and documents, if any, are found to be in order, take cognizance and direct issuance of summons.

17.

For reasons stated hereinabove, the prayers sought in this Petition cannot be granted. The Petition is devoid of merits and deserves to be rejected.

ORDER

i.

The Criminal Writ Petition No. 2078 of 2022 is rejected. ii.

Trial is expedited.

[PRAKASH D. NAIK, J.]