The High Court rejected a criminal writ petition challenging the refusal of a Commission of Inquiry under Evidence Act. Upholding lower courts' findings de
Rule discharged with costs. Trial expedited.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
rpa
CRIMINAL WRIT PETITION NO. 3967 OF 2012
Sadashiv Shivappa Mali .. Petitioner Vs. State of Maharashtra & Anr. .. Respondents
Mr. P.D. Paranjape, Advocate for the Petitioner. Ms. A. T. Javeri, A.P.P. for Respondent – State.
CORAM : K. U. CHANDIWAL, J.
DATED : DECEMBER 4, 2013.
P.C. :
Heard learned counsel for the petitioner extensively. Counsel for Respondent No.2 absent. Rule was issued on 1st August, 2013 with interim relief in terms of prayer clause (b).
of the Negotiable Instrument Act, 1881 for dishonour of cheque of Rs.95,000/- (Rupees Ninety Five Thousand only). After his evidence, he made application before learned Judicial Magistrate First Class, Jath below Exhibit-47 and taking recourse to Section
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73 of the Indian Evidence Act urging to dispatch the cheque in question to handwriting expert for calling opinion, or original signature of accused maintained with the Bank be called for comparison with disputed signature. In short, since the petitioner himself used Section 73 and his prayer referred above, the purport thereof is comparison by the Court.
4 Both the Courts have dealt with reasons for declining the relief in terms of Exhibit-47.
5 During the course of submission, I had asked Mr. Paranjape, learned counsel, whether stand of loss of cheque is emerging since inception. He says yes, however, could not support the same by reply to statutory notice under Section 138 of the Negotiable Instrument Act, 1881. However, on evaluating findings of learned Additional Sessions Judge particularly in paragraph No,9, learned Judge has also dealt with this aspect. There was no reply to the statutory notice which dealt with conduct and intention of the accused/applicant. The applicant had come with a strange defence that on 18th March, 2007 when he was proceeding to Dafalapur from Jat, his cheque book
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containing three leaves was lost which the complainant as a finder of lost cheque has misused. This is without any grievance in terms of Section 154 of Cr.P.C. to the police or any authority or to the banker to stop payment. This conduct tested with tenor of cross-examination again rebels to the stand raised by the applicant in application Exhibit-47. Another feature of the matter is during the evidence the parties desired amicable settlement. A pursis to that effect duly signed was tendered, admitting liability, however, the terms did not materialise. One may skip later part of admission as evidence is still going on, but seeking exercise of power under Section 73 of the Indian Evidence Act, certainly calls for adverse remarks. Order recorded by both the courts does not call for interference. Writ Petition is dismissed. Rule discharged with costs. Trial, if not concluded, is expedited.
6 Findings are prima facie in nature.
(K. U. CHANDIWAL, J.)
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3 issues framed by the court
Whether the High Court should interfere with the findings of the lower courts regarding the non-issue of a Commission of Inquiry under Section 73 of the Indian Evidence Act in a prosecution under Sect
Whether the petitioner's failure to reply to the statutory notice affects the prima facie finding of the lower courts.
Whether the petitioner's claim of lost cheque without reporting to police or banker warrants an adverse remark.
3 provisions across 3 enactments
Sadashiv Shivappa Mali
State of Maharashtra
K. U. Chandiwal
As recorded by the court registry
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