Dismissed

M/S. Unimex and Anr. v. the State of Maharashtra and Anr.

Bombay HC19 Sept 2011WP/310/2011

Case brief

AI extract

What is this about?

The High Court upheld the rejecting orders of lower courts in Section 138 proceedings where the accused sought to compel the complainant to produce documents. It held the burden of proof lies with the complainant and allowed the accused liberty to move the Magistrate to lead secondary evidence.

What did the court decide?

Liberty granted to the Accused to move the learned Magistrate to follow procedure for leading secondary evidence.

M/S. Unimex and Anr. Vs the State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2011)

WP 309.11.sxw

JPP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION

¶5

CRIMINAL WRIT PETITION NO. 309 OF 2011 ALONGWITH CRIMINAL WRIT PETITION NO. 310 OF 2011 ALONGWITH CRIMINAL WRIT PETITION NO. 311 OF 2011 ALONGWITH CRIMINAL WRIT PETITION NO. 312 OF 2011 ALONGWITH CRIMINAL WRIT PETITION NO. 313 OF 2011

M/s. Unimex and Anr.

... Petitioners.

V/s.

The State of Maharashtra & Anr.

¶10

... Respondents.

¶11

Mr. Nitin Pradhan i/b. Ms. S.D. Khot for the Petitioners. Mrs. M.M. Deshmukh, APP for the State. Mr. M.S. Mohite, for Respondent No.2.

¶12

CORAM : K.U. CHANDIWAL, J.

¶13

DATED : 19^th SEPTEMBER 2011.

¶14

P.C. :-

¶15

Heard learned Counsel extensively.

¶16

An application under Section 91 was moved directing the complainant to produce 5 documents as listed in the very application in paragraph 6. The learned Judge, by order dated 15.09.2010 rejected the same. Challenge before the learned Additional Sessions Judge is confirmation to the said order, by

¶17

WP 309.11.sxw

¶18

¶19

order dated 27.10.2010 in Revision Application Nos.35 to 39 of 2010. Cross-examination of the complainant has commenced and lastly, it appeared on 26.8.2011 and I am informed the matter is listed before the learned Judge today.

¶20

The learned Judge, while rejecting the Application below Exhibit 36, which is identical in other cases also has rightly observed that in the proceedings under Section 138 of Negotiable Instruments Act, it is the complainant, who has to establish his case and therefore, he need not be compelled to produce the documents as desired by the Accused. The learned Sessions Judge has, on scanning of the record found, indeed these documents were with the Accused and his asking to produce originals of them was beyond comprehension.

¶21

Mr. Mohite submits, in customs clearance, without production of original documents, there will not be delivery of goods as per the Customs Rules and it was the Accused, who was required to produce the original documents to get the goods cleared which indeed the accused has received, therefore asking to produce originals, would not be applicable to be coined.

¶22

Learned Counsel submits the procedure as envisage for production for leading secondary evidence ought to have been followed by the Accused.

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WP 309.11.sxw

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Though several other features are canvassed concerning extraneous material in the affidavit from paragraphs 14 to 18, I need not to dwell upon the same as the learned Judge seized with the matter will take care to exclude such evidence not pleaded in the complaint.

¶26

The proceedings under Section 138 requires a procedure and the discipline and if relevant issues as referred earlier are joined, the learned Judge will take care. I do not see any error in the orders of both the Courts. The Petitions dismissed. Liberty to the Accused to move the learned Magistrate in terms of Section 294 of Cr.P.C. and to follow procedure for leading secondary evidence. All Petitions disposed of.

¶27

(K.U. CHANDIWAL,J.)

M/S. Unimex and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Unimex and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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