Bombay High Court
Madanmohan Chandak Kundanlal vs State Of Maharashtra And Anr. on 29 September, 2007
Equivalent citations: 2008CRILJ968
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
ORDER C.L. Pangarkar, J.
1. These two applications under Section 482 of Criminal Procedure Code can be disposed of by common order since they arise out of a common order passed by the Judicial Magistrate First Class.
2. The facts giving rise to these applications are as under:
Applicant is the complainant in Criminal Cases instituted under Section 138 of the Negotiable Instruments Act. Respondent No. 2 is the accused. It is alleged that respondent No. 2 had issued cheques in favour of the complainant which came to be dishonoured. Since the cheques were so dishonoured, notices were issued to respondent No. 2 but respondent No. 2 failed to pay amount of cheques in spite of the notice. Hence the complaint came to be filed. Accused after summons was issued, appeared before the Magistrate. The evidence of the complainant was recorded by the Magistrate. Thereafter accused moved several applications which came to be rejected. Ultimately accused filed this application under Section 311 seeking examination of the witness from the bank, Income Tax Office and for recall of the complainant. This application was allowed by the learned Magistrate. Hence these two applications are preferred by the complainant.
3. I have heard the learned Counsel for the applicants. None appeared for the respondent No. 2.
4. It appears from the orders passed by the learned Magistrate that the cross-examination of the complainant-Power of Attorney was concluded on 4-4-2006. Thereafter accused moved an application purporting to be an application under Section 243 Criminal Procedure Code and sought to examine three witnesses viz. Postman, Manager of the Bank and Income Tax Officer. This application was heard and rejected on 23-5-06. This order was never challenged before any higher Court. It has thus assumed finality. It also appears from the order of the lower Court that on 10-4-06 another application Ex. 55 was moved by accused for calling complainant himself for cross-examination since the complainant instead of himself has examined his power of attorney. This application also was rejected and this order too was not challenged before any higher Court. This order, therefore, has assumed finality.
5. It appears from the order of the lower Court that on 21-2-06 accused examined his witness No. 2 and did not examine any other witness, hence the case was posted for hearing of arguments. It is further clear that application purporting to be under Sections 73 and 45 of the Evidence Act was filed on 20.7.06. That application was also rejected. Later the accused sought three adjournments vide applications Ex. 75, 76 and 77. As per these applications adjournment was granted to the accused for arguing the case. It is further clear from lower Court's order that on 27-11 -06 one Thakare Advocate filed his Vakalatnama and filed application for adjournment though the case was fixed for judgment. This application was again granted by the learned Magistrate. On 30-11-06 again Shri Thakare moved an application on behalf of the accused under Section 311 of Criminal Procedure Code. The complainant's say "was obtained on this application and then both parties filed a joint pursis to exhibit the documents filed on record and in view of that application under Section 311 was not pressed by the accused. On that day i.e. on 30-11-06 again the accused moved an application for adjournment to argue the matter. He requested for a long adjournment and that was also granted and the matter came to be posted on 11-12-06 for hearing of the arguments, instead of advancing the arguments on 11-12-06 again the accused non-applicant moved an application under Section 311 of the Criminal Procedure Code. This application was however granted by the learned Judicial Magistrate First Class and that order is challenged.
6. The above facts make it very clear that the only intention the accused has had was to protract the trial and nothing else. His earlier applications for examining the Postman, Income Tax Officer and Manager of the Bank was already rejected and that order has assumed finality. It is also seen that his another application Ex. 55 to call the complainant for cross-examination was also rejected on 10-4-06 and this order has also assumed finality since it is not challenged. By the present application under Section 311 also the accused seeks to cross-examine the complainant further and call the witnesses Postman and Income Tax Officer. It is, therefore, obvious that the same relief is claimed in this application under Section 311 of Criminal Procedure Code which was claimed by the earlier applications which came to be rejected. The accused cannot move repeatedly the same kind of applications once any order assumes finality. Similar applications on same facts and seeking same relief would certainly be not tenable and the learned Magistrate therefore should not have entertained the application under Section 311 once again.
7. The main ground upon which further cross-examination of the complainant and examination of other witnesses is sought is due to a change in the lawyer and want of instructions to the earlier lawyer. Both can-not be the grounds for grant of applications. If the accused chooses not to give instructions to his lawyer, that cannot be helped. In the instant case the accused had filed similar applications which were rejected and accused did not care to challenge the rejection of these, applications and allowed those orders to assume finality. This cannot either be said to be a mistake or oversight. The reason is after these applications were rejected the case was adjourned on many occasions to give opportunity to the accused to argue the case. Adjournments were sought for arguing the matters but instead of arguing the matter on one or the other count applications were moved. The decision in Mohanlal v. Union of India , referred to in the order of the lower Court cannot have bearing on the case at hand.
8. In the instant case there was no genuine desire to lead any evidence for bringing facts before the Court but the intention was only to prolong. Even in these applications before this Court the respondents have not cared to appear. Although it appears that the learned Magistrate has taken into consideration the entire previous conduct of the accused, unfortunately he allowed the application. I find that since the earlier applications were rejected the learned Magistrate could not have granted the same reliefs in the new applications. If the Courts go on entertaining identical, applications twice, thrice perhaps there will be no end to the litigation. In view of this, I find that the learned Magistrate certainly fell into error in granting the applications under Section 311 of the Criminal Procedure Code on Exhibits 84 and 83. As a result application under Section 482 Criminal Procedure Code must be allowed and the order passed by the Magistrate on Exhibits 84 and 88 must be quashed. The order passed by the Magistrate is, therefore, and the applications Ex. 84 and 88 stand rejected.