Ritesh Kumar Rai vs Vinit Mahajan

This petition under Section 482 of Cr.P.C. has been filed to invoke the extraordinary jurisdiction of this Court and to set aside the order dated

14.06.2017, passed by First Additional Sessions Judge, Narsinghpur in Criminal Revision No.25/2017, wherein the revisional Court has upheld the

order dated 23.01.2017 passed by learned Judicial Magistrate First Class in Criminal Complaint Case No.60/2016, whereby the application for

summoning the Branch Manager of ICICI Bank, Branch Damoh was rejected and order dated 03.03.2017, whereby the particular of offence was

amended, have been affirmed.

In the present petition, challenge has been made only to the extent of the order dated 23.01.2017 and 14.06.2017, whereby the petitioner-accused

requested for calling the Branch Manager, ICICI Bank, has been disallowed.

Perused the record and heard the parties.

The gist of the matter is that, the petitioner is facing trial of offence under Section 138 of the Negotiable Instrument Act allegedly the cheque dated

30.11.2013 of Rs.6 lacs, which the respondent-complainant placed for encashment was allegedly dishonored. Hence, after issuing notice and

completing the necessary formalities, the respondent-complainant has filed the the criminal complaint case under Section 138 of the Negotiable

Instruments Act against the petitioner-accused. After completion of the complainant's evidence and examination of accused, the petitioner-accused

filed an application under Section 243(2) of Cr.P.C. for calling the Branch Manager, ICICI Bank, Branch Damoh stating that the petitioner accused

deposited Rs.1,00,000/- on 03.07.2013, Rs.2,50,000/-on 05.08.2013, Rs.1,50,000/- on 12.09.2013 in the account of the respondent-complainant. The

petitioner had transferred Rs.1,50,000/- on 16.09.2013 and Rs.2,00,000/- on 16.11.2013 from the account of his wife Varsha Rai to the account of the

respondent-complainant.These amounts have been given to the respondent-complainant. Therefore, it is necessary to call the Branch Manager, ICICI

Bank. The application was dismissed by order dated 23.01.2017. Subsequently, in criminal revision also the said order has been affirmed.

The petitioner-accused has challenged the same in the present petition on the ground that he wanted to examine the Branch Manager, ICICI Bank

with the relevant documents in his defence. The order impugned is arbitrary, illegal, improper and suffers from error of jurisdiction. The petitioner-

accused claimed that for his defence examining the Branch Manager, ICICI Bank is relevant. The petitioner has paid the whole amount of the

cheque, whereas the complainant denied the same. Therefore, examining the Branch Manager, is necessary. He claimed that Rs. 11,47,000/- has

been deposited in the account of the respondent-complainant on different dates. Therefore, the same has to be considered and allowed.

Learned counsel for the respondent-complainant submits that earlier notice was given to the petitioner-accused, but he did not care to file any reply,

nor did he ever asked any question with regard to the payments, as described by him during the evidence of the complainant. It is also contended that

these amounts, which allegedly were given to the respondent-complainant, was with regard to other transactions and not with regard to the present

cheque of Rs. 6 lacs.

On perusal of the record, it is evident that the petitioner-accused failed to reply the notice. If the petitioner-accused had deposited the amount, he

could have easily stated so in reply to the notice given to him before filing of the complaint case. In the examination of the accused, the accused has

stated that he received Rs. 8 lacs cash in installments of Rs.49,000/- each were given on 11.05.2012. Reposing confidence on the complainant, the

cheque was given to him. On different dates, the amounts were paid. When demand of interest was not paid, the complainant has filed the criminal

complaint case by misusing the cheque earlier advanced.

On examining the complaint, it is found that, cheque in dispute is 008762 dated 30.11.2013 of Rs. 6,00,000/-, whereas the amount allegedly paid by the

petitioner, according to the application filed under Section 243(2) of the Cr.P.C., is earlier to the cheque dated 30.11.2013. Besides the petitioner-

accused has not filed the reply of the notice, nor did he ever asked any question in this regard during recording of the complainant's evidence.

Therefore, this averment after examination of the accused seems to be after thought to prolong the criminal trial.

Counsel for the petitioner placed reliance on T. Nagappa vs Y.R. Muralidhar, reported in 2008 (4) MPLJ 455, wherein the Apex Court has held that

the accused has right to fair trial. He has right to defend himself and in this regard the accused may adduce evidence as recognized under Section

243(2) of the Cr.P.C. This citation is not applicable in the present circumstances, for the simple reason that the prosecution which the petitioner

wanted to adduce by evidence are deposits prior to the date of issuance of the cheque. Hence, this citation is of no avail to the petitioner.

This Court, therefore, do not find it fit to interfere with the concurrent findings of the Courts below. This petition is, therefore, dismissed.