Dismissed

Ashok Madhav Phadnis v. Walchandnagar Sahakari Bank Ltd. and Anr.

Bombay HC4 Apr 2006WP/295/2006

Case brief

AI extract

What is this about?

In Criminal Application 8083/2005 concerning a cheque dishonour appeal, the High Court rejected an application to record additional evidence. The court held that sufficient opportunity for cross-examination was given and the appeal would benefit even if the complaint was beyond limitation due to condonation rules.

What did the court decide?

Application for recording additional evidence rejected; appeal dismissal stands.

Ashok Madhav Phadnis Vs Walchandnagar Sahakari Bank… — Criminal Trial and Appeal | Bombay HC (2006)

¶1

 FARAD CONTINUATION SHEET NO.

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL WRIT PETITION NO.295 OF 2006

¶4

 -------------------------------------------------------
 Office Notes, Office
 Memoranda of Coram Court’s or Judge’s orders
 appearances, Court’s orders
 or directions and
 Registrar’s orders

¶5

 -------------------------------------------------------
 Mr.Uday Prakash Warunjikar for the
 petitioner.

¶6

 Mr.Rajesh More APP for the State.

¶7

Coram : R.S.Mohite,J
 Date : 4th April, 2006.
 PC

¶8

 1. Advocate for the petitioner
 states that he wants to make a
 fresh application before the
 appellate Court and for that
 purpose he would like to
 withdraw this petition.
 Petition is therefore, dismissed
 as withdrawn. Interim relief is
 vacated. If any application is
 made before the appellate Court,
 the same will be decided on its
 own merits.

¶9

(R.S.Mohite,J)

¶10

CRIMINAL APPLICATION 28/2006
 IN
 CRIMINAL APPLICATION 8083/2005

¶11

 : 2 :

¶12

 1. In this matter notices were
 issued to the respondents in the
 application for restoration. It
 appears that the main
 application no.8083/2005 was
 dismissed for default at the
 stage when notices were not
 issued and none appeared for the
 respondents. In the
 circumstances, though notices

¶13

 are not served, I am inclined to

¶14

 restore this application. It
 may be stated that this

¶15

 application is placed on record
 alongwith companian matter which

¶16

 was due today and which
 companian matter seeks the

¶17

 quashing and setting aside of
 the subsequent order made on the

¶18

 subsequent application for the

¶19

 same relief i.e. for allowing
 additional evidence. In the
 circumstances, Criminal
 application 28 of 2006 is

¶20

 allowed and Criminal application
 8083/2005 is restored to file.

¶21

(R.S.Mohite,J)

¶22

 : 3 :

¶23

CRIMINAL APPLICATION 8083/2005

¶24

 1. This application impugns an
 order passed below Exhibit-18 in
 Criminal Appeal No.17 of 2001.
 The said appeal which is pending
 in the Court of Additional
 District Court, Baramati is
 directed against the conviction
 recorded by the JMFC, Indapur on
 17.9.2001 for an offence
 punishable under Section 138 of
 the Negotiable Instruments Act.
 The trial Court had sentenced
 the appellant to under-go RI for
 one year and to pay compensation
 of Rs.20 lakhs to the
 respondents. In the trial Court
 complainant had led the evidence
 of himself and 2 witnesses.
 These 2 witnesses were PW-2
 Praveen Pawar, a clerk from
 Cosmos Bank which was the bank
 of the accused and PW-3 Ajit
 S.Jadhav who was the clerk from
 Pune Zilla Madhyawarti Bank
 Pune, which was the bank of the
 complainant. These witnesses

¶25

 : 4 :

¶26

 were cross-examined by the
 accused. At the end of the
 trial, conviction and sentence
 was recorded as aforesaid. The
 appeal came to be filed by the
 appellant in the Court of the
 Additional District Judge,
 Baramati in the year 2001 and
 was numbered as Criminal appeal
 no.17 of 2001. 3 years after
 filing of the appeal on
 29.10.2004 an application came
 to be made for recording
 additional evidence in the
 appeal. The evidence sought to
 be recorded was of the officer
 of the complainant’s Pune Zilla
 Madhyawarti Bank Pune. The
 reason given in the application
 for re-call of the witness was
 that there was no clear evidence
 to show as to how the bank memos
 were sent by the complainant’s
 Pune Zilla Madhyawarti Bank to
 the complainant. The reason as
 to why this evidence was
 necessary for the appellant was
 to show that the complaint may
 be barred by limitation. It is

¶27

 : 5 :

¶28

 no where stated in the
 application as to what prevented
 the accused from asking this
 question to the witness when the
 witness was in the box. It is
 also not mentioned in the
 application that the accused had
 received any fresh information
 that the bank memos had been
 received by the complainant
 prior to 8.10.1998. It may be
 noted here that the complainant
 had categorically mentioned in

¶29

 the evidence that he had
 received the bank memos on
 8.10.1998 and there was no
 suggestion that he has received
 the same prior to 8.10.1998.
 The Additional District Judge,

¶30

 Baramati in his impugned order
 dated 23.8.2005 gave this very
 reason for rejecting the
 application for leading
 additional evidence. He

¶31

 however, went on to give further
 reason to the effect that the
 Cr.P.C did not provide any
 remedy to the accused for
 leading additional evidence in

¶32

 : 6 :

¶33

 appeal. This additional reason

¶34

 is attacked and in my view

¶35

 correctly because there is no

¶36

 such fetter laid down by Section
 391 of Cr.P.C. However, on the
 earlier reasoning the end result

¶37

 of the application for recall of

¶38

 witness would have been the
 same. It was sought to be

¶39

 contended that the matter may be

¶40

 remanded. However, on the

¶41

 merits of the matter, it is
 clear that sufficient

¶42

 opportunity was given for

¶43

 cross-examination of the witness

¶44

 of the complainant’s bank.

¶45

 Hence, I am not inclined to

¶46

 entertain this application and

¶47

 the same is rejected.

¶48

 2. It must be born in mind that

¶49

 though the wording of Section
 391 of Cr.P.C. is wide, the

¶50

 Apex Court has time and again

¶51

 held that the power under

¶52

 Section 391 must be sparingly

¶53

 used and must not be used in any

¶54

 way as to cause prejudice to the

¶55

 accused or as a disguise for

¶56

 : 7 :

¶57

 re-trial or to change the nature
 of the case against the accused.

¶58

 In the case of Rajeswar Prasad

¶59

V. State of W.B. reported in
AIR 1965 SC 1887 the Apex Court
 has clearly held that an order
 under Section 428 of the 1898
 Code which corresponds to
 section 391 of the present Code
 must not ordinarily be made if
 the prosecution has had a fair
 opportunity and has not availed
 of it unless the requirement of
 justice dictate otherwise. The
 same reasoning would also apply
 where the defence have had fair
 opportunity. It was the defence
 contention that no such fair
 opportunity was given by the
 trial Court. Apart from this,

¶60

 this Court has settled the law

¶61

 by holding that even if the
 complaint was beyond the period
 of limitation and application

¶62

 for condonation of delay can be

¶63

 made at any stage and can be
 made even after cognizance is
 taken or even at the appellate
 or revision stage. In the

¶64

 : 8 :

¶65

 circumstances, no benefit is
 likely to accrue to the accused.
 In this view of the matter,
 application is rejected.

¶66

(R.S.Mohite,J)

Ashok Madhav Phadnis v. Walchandnagar Sahakari Bank Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

Ashok Madhav Phadnis v. Walchandnagar Sahakari Bank Ltd. and Anr.

Case brief

What is this about?

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What the court decided

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