Disposed

Hyder Ali Damania., v. Neli Kunhili Mohammed Nizzaz @ N. K. Mohammed Nizzar and Anr.

Bombay HC6 Apr 2021WPCR/29/2020

Case brief

AI extract

What is this about?

This single-judge writ bench disposed of a petition challenging Magistrate orders directing the production of a cheque and specimen signature. The court held that due to the accused's defence of excess payment, the Magistrate must deal with requests for cross-examination or additional evidence to avoid prejudice.

What did the court decide?

Petition disposed of; liberty for cross-examination and additional evidence to be dealt with by the Magistrate.

Hyder Ali Damania., Vs Neli Kunhili Mohammed Nizzaz @ N. K… — Cheque Dishonour | Bombay HC (2021)

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Andreza 1

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL WRIT PETITION NO. 29 OF 2020

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Hyder Ali Damania...... Petitioner

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V e r s u s

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Neli Kunhili Mohammed Nizzaz
@ N. K. Mohammed Nizzar & anr.......Respondents

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Mr. Ajit Kantak and Mr. Raunak Ajit Kantak, Advocates for the Petitioner.

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Mr. Rohit Bras De Sa and Ms. V. Shet, Advocate for the Respondent No.1.

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Mr. G. Nagvenkar, Additional Public Prosecutor for the Respondent no.2.

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CORAM : NITIN W. SAMBRE, J.

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DATE : 6th April, 2021

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ORAL ORDER

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In a proceedings for an offence punishable under Section 138 of

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the Negotiable Instruments Act, initiated at the behest of the Petitioner, in

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exercise of powers under Section 91 of the Criminal Procedure Code, the

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learned Magistrate has passed orders impugned dated 08.11.2019, below

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exhibits D-52 and D-53, whereby the notice is directed to the Manager, IDBI

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Bank to produce cheque no. 246394 dated 15.03.2013 for an amount of

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Andreza 2

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₹ 2,30,000/- and further directions to the Manager, IDBI Bank to produce the specimen signature of the accused.

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2.The learned Counsel for the Respondent no.1 in response to the
claim put forth in the Petition, in the matter of challenge raised to the
aforesaid orders, would invite attention to following pleadings in reply :

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"41. I say that however I do not have any objection for the
Petitioner to cross-examine the said witness who has been
summoned to produce the said documents, if this Hon'ble
Court so allows.

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42. I say that the Petitioner can also re-examine Pw. 4 in terms
of Section 138 of the Evidence Act after the cross-examination
by me. I say that his right of re-examination is not taken away
by the Trial Court."

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3. The Counsel for the Petitioner, in the light of the aforesaid
observations, submits that even if the orders impugned are permitted to stand,
the interest of the Petitioner-Complainant may not be suffered/prejudiced as
the Petitioner has already discharged the initial burden. According to him, in
the wake of the aforesaid submissions of the Respondent no.1, if required, he

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Andreza 3

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may be granted liberty to cross-examine Pw.4 on the aforesaid documents

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which are permitted to be produced vide impugned orders.

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4.In the aforesaid background, particularly having regard to the
cause for which the powers are exercised by the learned Magistrate under
Section 91 of Cr. P.C. and the fact that the Respondent no.1 has come out
with the defence of payment of excess amount, in case, if the Petitioner takes
out an application for cross-examining the said witness, Pw.4, or for leading
any additional evidence, it is expected of the learned Magistrate to deal with
the same in the light of the submissions made by the Respondent no.1 in
Paras 41 and 42 (supra) so as to avoid any prejudice to the Petitioner.

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5.With the above observations, the Criminal Writ Petition stands

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disposed of.

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NITIN W. SAMBRE, J.

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Digitally signed by ANDREZA PEREIRA Date: 2021.04.06 12:20:00 +05'30'

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ANDREZA PEREIRA

Hyder Ali Damania., v. Neli Kunhili Mohammed Nizzaz @ N. K. Mohammed Nizzar and Anr.

Case brief

What is this about?

What did the court decide?

Hyder Ali Damania., v. Neli Kunhili Mohammed Nizzaz @ N. K. Mohammed Nizzar 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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