High Court
Legal Reasoning
corrected Cri WP 1880-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1880 OF 2023Dnyaneshwar s/o Suryabhan KhadkeAge 46 years, Occu: Labour & Agri.R/o Panegaon Tq. Newasa Dist. Ahmednagar…PetitionerVERSUS1.Arjun s/o Rangnath ShindeAge 54 years, Occu: Agri.R/o Mandegavhan Tq. Newasa Dist. Ahmednagar2.The State of Maharashtra…RespondentsMr. K. N. Shermale, Advocate for the Petitioner,Mr. Manoj A. Dond, Advocate for Respondent No.1Ms. A. S. Deshmukh, APP for the Respondent No.2-StateCORAM : Y. G. KHOBRAGADE, J.RESERVED ON : 21.01.2025PRONOUNCED ON: 28.01.2025JUDGMENT:-1.Rule. Rule made returnable forthwith. Heard the matter finally atthe stage of admission with the consent of both the parties.2. By the present Petition under Articles 226 and 227 read withSection 482 of Code of Criminal Procedure, 1973 (for brevity hereinafterto be referred as Cr.P.C.), the Petitioner takes exception to the order dated28.11.2023 passed by the learned Sessions Judge, Ahmednagar in Cri.Page 1 of 9 corrected Cri WP 1880-23.odtMisc. Application No. 214 of 2023, thereby rejected the prayer of thepresent petitioner/original accused for transfer of complaint bearing SCCNo. 571 of 2019 from the file of learned 2nd Joint Civil Judge JuniorDivision & Judicial Magistrate First Class, Newasa, and directed thePetitioner to pay the cost of Rs. 2,000/- to the present respondent/originalcomplainant.3. Having regard to the submissions canvassed on behalf of both thesides, I have gone through the Petition Paper Book. It is not in dispute thatthe complainant instituted a complaint bearing Summary Criminal CaseNo. 571 of 2019 for the offence punishable under Section 138 of theNegotiable Instruments Act, 1881 (for brevity “NI Act”) and it is pendingon the file of learned Judicial Magistrate First Class, Newasa.4. The present petitioner is the original accused and the presentrespondent No. 1 is the complainant in Complaint bearing SCC No. 571 of2019. (For the sake of brevity, parties to the present petition hereinafter bereferred in their original capacity as “complainant” and “accused”).5. On compliance of mandatory provisions of Section 202 Cr.PC., on14.02.2020, the learned trial Court passed the order and issued processagainst the accused for the offence punishable under section 138 of the NIAct. The Respondent-1/ complainant filed evidence affidavit onPage 2 of 9 corrected Cri WP 1880-23.odt15.03.2022 and further examination in chief was recorded and documentsare exhibited. On 17.03.2023, the learned Judicial Magistrate First Classpassed the order of “No Cross Examination”. Thereafter, the matter wasfixed on 27.04.2023 for further consideration. On 27.04.2023, the accusedwas absent, however, his counsel filed an Application under Section 45 ofthe Evidence Act, 1872 and prayed for referring the cheque in question tothe handwriting expert because there is alteration in the cheque amount.Thereafter, the learned JMFC adjourned the trial on 21.07.2023, but theaccused remained absent.Thereafter, the complainant filed Exh. 51, an application for issuance ofnon bailable warrant against the accused. Accordingly, on 21.07.2023, thelearned JMFC issued the non-bailable warrant against the accused.Therefore, the Petitioner filed Cri. Writ Petition No. 1455 of 2023 forsetting aside the order of issuance of non bailable warrant passed belowExh.51. On 19.10.2023, this Court passed an order in said Petition anddirected the trial Court not to take the petitioner in custody in connectionwith the crime in question for the period of one month and the Petitionerwas directed to appear before the learned Magistrate on the next date ofhearing i.e. on 08.11.2023. So also, the trial court was directed to conductthe trial of complainant bearing SCC No. 571 of 2019 as expeditiously aspossible. Page 3 of 9 corrected Cri WP 1880-23.odt4. On 08.11.2023, the petitioner approached before the JMFC andfiled Exh.53 an application for cancellation of NBW, which came to beallowed.6. The learned counsel appearing for the present petitioner/accusedcanvassed that, the Petitioner instituted Criminal M.A. No. 214 of 2023,before the learned Sessions Judge, Ahmednagar, and prayed for thetransfer of complaint bearing SCC No. 571 of 2019 (Arjun RangnathShinde Vs. Dnyaneshwar Suryabhan Khadke) from the Court of 2nd JointCivil Judge Junior Division & Judicial Magistrate First Class, Newasa, toany other Court. However, on 28.11.2023, the learned Sessions Judgepassed the impugned order, declining the petitioner’s request for thetransfer of the proceeding and imposed cost of Rs.2000/- upon him.7. The learned counsel appearing for the petitioner/accusedcanvassed that, the impugned order passed by the learned Sessions Courtis in violation of principles of equity, good conscience and natural justice.Further, impugned order lacks application of judicious mind because, asper Roznama, the accused filed Exh. 47, an Application for referring thedisputed cheque to a handwriting expert under section 45 of the EvidenceAct. However, the learned trial court without deciding said applicationposted the matter for recording statement of the petitioner/accused undersection 313 Cr.P.C. Therefore, the petitioner apprehended about notPage 4 of 9 corrected Cri WP 1880-23.odtreceiving substantial justice and fair trial. However, the learned SessionsCourt failed to consider the provisions of law and facts before passing theimpugned 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 matteron ground or another. The petitioner/accused remained absent onnumerous occasions. Therefore, the learned trial court repeatedly issuedwarrants to secure his presence. Not only this, but the complainant filedevidence affidavit and deposed further to prove the documents. Thelearned trial Court granted ample opportunities to the petitioner to crossexamine the complainant but for considerable period, the petitioner failedto cross examine the complainant. Therefore, the respondent wascompelled to file the application for issuance of non bailable warrantagainst the petitioner. Ultimately, the learned trial Court passed the orderand issued non bailable warrant against the petitioner/accused, which hasbeen subsequently recalled. Further, matter was placed before the LokAdalat to explore the possibility of settlement, but no settlement wasarrived at. 9. On face of record, it appears that, on 17.03.2023, the counsel of thepetitioner/accused prayed for grant of personal exemption of thepetitioner/accused and adjournment. Accordingly, the exemption wasPage 5 of 9 corrected Cri WP 1880-23.odtgranted, but the adjournment was rejected. The complainant entered intowitness box and led further evidence. Further, on 27.04.2023, thepetitioner/accused was remained absent and his counsel obtainedexemption for his personal appearance. Thereafter, the petitioner filedExh. 47 application for referring the cheque in question to theHandwriting Expert for obtaining opinion under Section 45 of theEvidence Act. On 21.07.2023, the accused was again absent, therefore,warrant was issued against him but it was subsequently cancelled. Therespondent/complainant undergone cross examination conducted onbehalf of the petition/accused. The Respondent filed Pursis and closed hisevidence. Thereafter, matter was posted for recording of statement of theaccused under section 313 of Cr.PC.10. Needless to say that, neither the Petitioner/Accused hasentered into witness box nor he examined any other witnesses. As per theprocedure contemplated under Code of Cri. P. C., the Accused having rightto lead defence evidence and can examine any other witness to prove hisdefence after statement of the Accused is recorded u/s 313 of Cri. P. C.However, the Petitioner/accused filed application Exh. 47 seeking expert’sopinion on the figure “0” (Zero) written on the cheque on ground thatone “0” (zero) is smaller than others, without leading defence evidence.Further, the petitioner/accused has not given reply to the mandatoryPage 6 of 9 corrected Cri WP 1880-23.odtnotice u/s 138 of NI Act, which was served upon him and no such defencetaken at any time before. However, the petitioner first time taking suchdefence. It is well settled principles of law that, the Court machinerycannot be used for collecting evidence for the parties, however, by thefiling Exh. 47, the petitioner saught to collect expert’s evidence by usingCourt machinery, which is not permissible. Therefore, the submissioncanvassed on behalf of the petitioner/accused not acceptable to myjudicial conscience. 11.During cross-examination, suggestion was given to therespondent/complainant that one of the zeros on the cheque appearedsmaller than the other. Except this, nothing is brought on record to showthat the respondent/ complainant overwritten the word or added word.Therefore, the contention of the petitioner/complainant that Exh. 47application filed by him was not decided by the learned trial court anddirectly proceeded to record statement of the accused under Section 313Cr. P. C., does not appear justifiable. Since the petitioner/accused raisedan objection about figure “0” (zero) appearing on the cheuqe, hence, theburden lies on the petitioner/accused to prove his defence with cogentevidence after recording statement under section 313 of the Cr.P.C. of thepetitioner/accused. 12. In the case in hand, the petitioner filed Criminal M.A. No. 214 ofPage 7 of 9 corrected Cri WP 1880-23.odt2013 under section 408 of CrP.C. and prayed for transfer of trial ofcomplaint bearing SCC No. 571 of 2019 from the file of learned 2nd JointCivil Judge Junior Division & Judicial Magistrate First Class, Newasa toany other Court on ground that, non bailable warrant was issued againsthim and he was threatened that, if he gives trouble to the PresidingOfficer, 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 remainedabsent on only one date and therefore, the NBW was issued by thelearned Magistrate and thereafter the complainant abruptly gaveaffidavit of examination-in-chief and on the same day adduced alldocuments in evidence and the case was immediately posted forstatement of accused under Section 313 of Code of CriminalProcedure, is contrary to the record as stated hereinbefore. At thecost 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 29.04.2022warrant was issued as the accused was absent and he did not paythe amount of 20% of the cheque as ordered by the Court. It wasadjourned to 16.06.2022. Meanwhile, the accused through hispresent learned advocate appeared on 17.05.2022, got the casetaken on board and got the warrant cancelled. Instead of takingsuch recourse on the next occasion, the accused directly filed writpetition. In view of the cancellation of warrant on 17.05.2022,there is no merit in the submission of the learned defence advocatethat the learned Magistrate was not likely to cancel the warrantPage 8 of 9
Legal Reasoning
corrected Cri WP 1880-23.odtand therefore, the accused had to file the writ petition.11] After getting the warrant cancelled on 17.05.2022, the accusedtook adjournment on the next date. On the further next date hisadjournment application was granted as last chance. on 5th date ofthe adjournment subsequent to that, the further adjournment wasrejected on 17.03.2023 and the documents produced by thecomplainant were taken in evidence. The matter was adjourned forcross examination. On the next date, the accused moved applicationat Exh.47 for calling opinion of the Handwriting Expert. Thecontention of the learned advocate Shri Shaikh for the accused thatthe stage for examination of accused under Section 313 of Code ofCriminal Procedure has not reached, is incorrect.”14.With the above observation, the learned Session Court heldthat, the allegations made by the respondent/accused are not substantial,hence, rejected the application for transfer of the proceeding, which doesnot appear to be perverse, illegal and bad in law. Therefore, the CriminalWrit Petition deserves to be dismissed. Accordingly, it is dismissed. Ruledischarged.15.Resultantly, earlier interim order passed on 21.12.2023 and05.01.2024 shall stand vacated.( Y. G. KHOBRAGADE, J. )JPChavanPage 9 of 9