KAPOORRAI KANAJI,KARTA OF HUF KAPURRAY KANAJI v. STATE OF GUJARAT & ORS.

CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/02/2008 ORAL JUDGMENT

1. By this application, the petitioner seeks quashing of the order dated 24th September, 2007 passed by the learned Sessions Judge, Court No.11, Ahmedabad City in Criminal Revision Application No.270 of 2007 below Exhibit 9 and also the order dated 26th April, 2007 passed below Exhibit 34 by the learned Metropolitan Magistrate, Court No.16, Ahmedabad in Criminal Case No.951 of 2004 and prays that the application Exhibit 34 be allowed in its totality.

2. The facts of the case briefly stated are that the petitioner had lodged Criminal Case No.951 of 2004 under the provisions of Section 138 of Negotiable Instruments Act, 1881, in the Court of Metropolitan Magistrate, Court No.16 at Ahmedabad, wherein the respondents No.2 to 4 herein have been arraigned as accused. During SCR.A/2097/2007 JUDGMENT the pendency of the Criminal Case, the petitioner gave an application Exhibit 34 alleging inter-alia that the lawyer of the respondents (original accused) used to upset the petitioner and dictate to the Shireshtedar the details of the cross examination of the petitioner in his own language as per his dictates. It is, therefore, prayed that the cross examination of the petitioner recorded on 12th March, 2007 be cancelled and the petitioner's cross-examination be dictated to the Shireshtedar by the Court itself in accordance with law.

3. By the impugned order dated 26th April, 2007 the learned Metropolitan Magistrate rejected the application on the ground that during the course of cross-examination it was for the accused to ask such question he deems fit. That it was not for the complainant to state as to in which manner and which capacity the accused can be questioned during the course of cross- examination. The Metropolitan Magistrate has SCR.A/2097/2007 JUDGMENT also recorded that the deposition of the complainant has been recorded in accordance with the provisions of the Evidence Act, however, on account of ignorance of law, the complainant has filed the said application. The learned Metropolitan Magistrate has also recorded that as the trial is not concluded the facts stated in this application can be decided at the time of arguments and accordingly directed that the application be filed. The petitioner carried the matter in revision before the City and Sessions Judge, Ahmedabad being Revision Application No.270 of 2007. By the impugned order dated 24th September, 2007, the learned Additional Sessions Judge, Court No.17, Ahmedabad City rejected the revision application. Being aggrieved, the petitioner has filed the present petition seeking the relief noted hereinabove.

4. Heard the petitioner Shri Kapoorrai Kanaji, who appears in person and Mr.Brijesh Limbachia, learned advocate for the respondents No.2 to 4 and Mr.K.P.Raval, learned Additional Public SCR.A/2097/2007 JUDGMENT Prosecutor on behalf of respondent No.1-State of Gujarat.

5. In response to the averments made in the petition, further affidavit-in-reply dated 15th February, 2008, has also been filed on behalf of respondents No.2 to 4. The petitioner has filed affidavit in rejoinder dated 7th February, 2008. Today, the petitioner has submitted another affidavit alongwith which he has annexed affidavits filed by two advocates practicing in the Metropolitan Magistrate Court at Gheekanta, Ahmedabad, wherein it has been stated that the concerned advocates were present before the Court during the cross-examination and that the language reproduced in the cross examination was not at all in manner and fashion as answered by the petitioner and that the cross examination had been taken by the Shireshtedar as dictated by the learned advocate appearing on behalf of respondents No.2 to 4. SCR.A/2097/2007 JUDGMENT

6. This Court has considered the submissions advanced by the petitioner as well as by the learned advocates for the respondents.

7. The main grievance voiced in the present petition is that the concerned Court instead of recording evidence as provided under Section 274 of the Code of Criminal Procedure, permitted the learned advocate for the respondents No.2 to 4 to dictate the substance of the cross- examination directly to the concerned Shireshtedar.

8. Though the said grievance has been voiced in the application made before the learned Metropolitan Magistrate, the same has not been specifically dealt with by the learned Metropolitan Magistrate in the impugned order dated 26th April, 2007. Nevertheless, the learned Magistrate has categorically recorded that the evidence of the complainant has been recorded in accordance with the provisions of the Evidence SCR.A/2097/2007 JUDGMENT Act. The learned Additional Sessions Judge, has confirmed the aforesaid order passed by the learned Metropolitan Magistrate mainly on the ground that the petitioner has not been in a position to point out as to which provision of the Evidence Act has been violated.

9. In this regard it would be pertinent to refer to the decision of the Supreme Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and another, AIR 1982 SC 1249, wherein the Court was dealing with a matter where it was argued that a concession had not been made by the learned Attorney General before the High Court. The Supreme Court held as follows:-

4. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation".(Per Lord Atkinson in Somasundaran v. Subramanian, A.I.R 1926 SCR.A/2097/2007 JUDGMENT P.C. 136 ). We are bound to accept statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chanderwati, A.I.R. 1917 P.C. 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on SCR.A/2097/2007 JUDGMENT a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. ...... .....

7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.”

10. Considering the facts of the present case, in the light of the decision of the Supreme Court cited hereinabove, it is apparent that pursuant to the application made by the petitioner/ complainant, the learned Metropolitan Magistrate in his order dated 26th April, 2007 has specifically recorded that deposition of the complainant has been recorded in accordance with the provisions of the Evidence Act.

11. In the circumstances, viewed in the light of of the observations made by the Apex Court in the aforesaid decision, what is recorded by the learned Metropolitan Magistrate in the order SCR.A/2097/2007 JUDGMENT dated 26th April, 2007 is conclusive of the facts so stated and that the same cannot be contradicted by affidavits or otherwise.

12.In the circumstances, as the present petition is based mainly on the ground that the learned Magistrate has not recorded evidence in accordance with law, in relation to which the learned Magistrate in the impugned order dated 26th April, 2007 has categorically recorded that the provisions of the Evidence Act have been duly followed, no case is made out so as to warrant any intervention at the hands of this Court. The petition, is therefore, dismissed. Notice is discharged.

13. However, the Apex Court in the decision cited above has also held that it is for the concerned party who thinks that the happenings in court have been wrongly recorded in a judgment, to take steps to have the record corrected. In the circumstances, so as to ensure that the interest SCR.A/2097/2007 JUDGMENT of the petitioner is also taken care of, it would be open to the petitioner to move appropriate application before the learned Metropolitan Magistrate specifically pointing out as to exactly which part of his deposition has not been recorded correctly, while recording his cross-examination. Needless to state that if such an application is made, the learned Magistrate shall decide the same in accordance with law and in case any discrepancy in the recording of the petitioner's evidence is successfully pointed out, correct the same, so as not to prejudice his case. (H.N.DEVANI, J.) Amit/-