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Judgment
S.R. Brahmbhatt, J.—The Petitioner has filed this petition u/s 397 of the Code of Criminal Procedure, 1973, inter-alia, challenging the order dated 05.03.2005 passed by the learned Additional Sessions Judge, Viramgam in Criminal Revision Application No. 13 of 2004 on the ground that the learned Sessions Court patently erred in not appreciating the fact that the order passed by the learned JMFC in Criminal Case No. 914 of 1997 did not call for any interference at all.
The facts in brief leading to filing of this petition are set out as under:
The present Petitioner, as per his say in the petition, is the complainant who was constrained to take out proceedings under the provisions of Negotiable Instruments Act as the cheque of Respondent No. 2 for an amount of Rs. 1,00,000/- issued to him for fulfilling his liability was returned by the Bank with an endorsement "funds insufficient". Despite the notice, the amount of the cheque remained unpaid. The Negotiable Instruments Act complaint came to be filed in the Competent Court on 30.04.1997, which came to be registered as Criminal Case No. 914 of 1997. The Court, after recording verification on the part of the complainant, issued process in the aforesaid proceedings of Criminal Case No. 914 of 1997 and application Exh. 54 came to be filed by the complainant on 24.12.2003, inter-alia, praying that the complainant be re-examined for the reasons stated in the application. The said application came to be filed on completion of the cross-examination of the complainant. The reason for seeking re-examination was indicated that certain pertinent questions were not put to him in the cross-examination, nor has the explanation therefore though available, could not be placed on record and hence, the re-examination of the complainant is required. The said application Exh. 54 filed on 24.12.2003 was slated for hearing and ultimately, the learned JMFC, Viramgam vide his order dated 26.12.2003 granted the said application allowing the reexamination of the complainant. The order dated 26.12.2003, partly allowing the application qua paragraph No. 3 of the application was assailed by the present Respondent No. 2 - original accused by way of Criminal Revision Application No. 13 of 2004 in the Court of learned Additional Assistant Sessions Judge, Viramgam (Fast Track Court). The said revision application was preferred on the ground that the application ought not to have been allowed. The permission for re-examination is granted at the time when the questions at length were put to the original complainant by way of cross-examination. The permission for re-examination was granted qua the particulars mentioned on the cheques - Negotiable Instruments which was within the knowledge of the complainant and hence, the same could not have been granted. The said revision application was filed on 16.02.2004. The said application appears to have been resisted by the present Petitioner on the ground that the order passed by the learned JMFC below Exh. 54 being interlocutory order, the Revision Application was not competent to be maintained thereon. It was also argued that the limited prayer of the original complainant was accepted qua limited re-examination and therefore, no prejudice was likely to be caused to the Respondents. The Court allowed the said revision application and quashed and set aside the order passed on 26.12.2003 below Exh. 54 accepting the submission of learned advocate for the Respondents. This order dated 05.03.2005 is sought to be assailed in this revision application on the grounds mentioned in the memo of the application. This Court on 20.04.2005, while issuing notice calling upon the other side to appear, passed order of interim relief in terms of Para 12(B) of the petition staying further proceedings of Criminal Case No. 914 of 1997 pending before the Court of learned JMFC.
When the matter was called out, none has remained present for the Petitioner. Shri Viral J. Vyas for Shri Ashish M. Dagli requested for keeping this matter back for a while. The request was not accepted by the Court as even on earlier occasions also, when this matter was listed before this Court, such a request was accepted and the matter was kept back and later on, was required to be adjourned. This matter is of the year 2005 and therefore, the Court did not accept the request.
The order, which was impugned by the Respondents wherein the learned Sessions Court has passed the detailed order, is required to be taken into consideration. The learned JMFC has observed in his judgment and order that the cross-examination of the complainant was over and the re-examination was sought on account of not being questioned on account of the complainant being questioned as to lift ambiguity in the matter of date of instrument cheque in question as well as the earning in the family. It is appropriate at this stage to indicate the gist of the complainant''s version as it is reflected in Exh. 54 for which the re-examination was requested. The complainant has stated in his application that in the course of the questions put to him in cross-examination, an impression is sought to be created as if the complainant was the sole earning member in the family. Therefore, the requisite explanation with regard to earning of the other family member is also required to be clarified. The application contains further averment that the complainant is asked question with regard to one signature of the accused of the cheque and no further question is asked. Therefore, the explanation is required to be placed on record by way of re-examination that the second signature appearing on the cheque was for amending and/or correcting the date in the instrument and this aspect is sought to be glossed over by not addressing appropriate questions to the complainant. The complainant was asked in respect of the cheque being dated 30.09.1996, but the correction made by the accused is not explained or clarified. Therefore, in order to explain away, the re-examination was requested as it is provided u/s 138 of the Evidence Act. The learned Magistrate has accepted it qua the date of the cheque of the instrument. The said order of re-examination is qua placing appropriate explanation in respect of the dates appearing on the instruments only as the re-examination is ordered qua the explanation in respect to the dates on the instruments. Paragraph No. 3 of the application is not confined to how signatures on the cheque instrument, but also in respect of receipt purported to have been issued by the accused. This Court is of the view that when the crossexamination is completed and when the accused raised its defence, then, at that time even if there was a lacuna in the nature of not explaining the existence of two signatures on the instrument and lacuna with regard to receipt would be a lacuna which cannot be permitted to be rectified by way of re-examination. The reexamination is only for clarification in case if any ambiguity is created on account of examination. In the instant case, when the examination-in-chief by way of affidavit, it is pre-supposed that due care is taken by the concerned while submitting the affidavit and when the cross-examination is also over, the basic lacuna, if any, cannot be sought to be rectified by way of re-examination. The submission with regard to no revision be maintained upon discretionary order, in my view, would not be justifiably placed by the complainant in view of the fact that the same would go contrary to the principal of criminal trial. The criminal trial is to be conducted strictly in accordance with the Code of Criminal Procedure, 1973 and the Evidence Act. The question, therefore, arises as to whether the reexamination was sought in order to dispel any ambiguity, the answer is emphatically "No". The re-examination was sought for filling in the gaps howsoever serious may be in the case of the complainant. These gaps, once the defence is disclosed, could not have to be permitted to fill in by way of re-examination which might affect the very fabric of the case of the defence. In my view, therefore, the order impugned is not suffering from any error, much less error on the face of it, and therefore, the petition fails and hereby rejected. Rule is discharged. Interim relief stands vacated.