Dismissed

Anish Shah and Anr. v. Vijay Kumar Pali and Anr.

Chhattisgarh HC7 Jan 2011CRMP/333/2010

Case brief

AI extract

What is this about?

In these special bail applications under Section 482 CrPC, the High Court dismissed the petitions challenging the rejection of application for examination of documents by expert. The Court held that denying the request was not illegal as the application was filed too late and appeared vexatious.

What did the court decide?

Petitions Cr.M.P. Nos.332/2010, 333/2010 and 334/2010 are dismissed as no illegality was committed by the courts below.

Anish Shah and Anr. Vs Vijay Kumar Pali and Anr. — Cheque Dishonour | Chhattisgarh HC (2011)

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	HiGHCO	URTO C	FCHHATTfSGARHAT BiLASPUft r.M.P.No.3b2of2010
Petitioners ^piiCants		1. 2.	Anish Shah, S/o Premji Shah, Aged about35years. Smt. Rupal Shah,W/oShriAnishShah, Both R/o C-304, Laxmi Comptex, Fafadih, Raipur,DistrictRaiiftir (CG) Versus^ , -
Respondents Cbmpiainant		1. 2. C	Vijay Kumar Paii, S;o Lats B.R.P?!i, R/o Bajrang Qhowk, Mathpara, Raipur, Poiice Station - Purani Basti, Dist.Raipur(CG) State of Chhattisgarh, Thrftugh District MagistrateDistrictRaipur(CG) ' r.M.P.No.333 of2010 \ ;
Petitioners Applicants	G-:	1. 2.	Anish Shah, S/o Pramji Shah, Aged about35years, .. ^ Smt. RupalShah,W/oStiri Anish Shah, Bpth R/o C-304, Laxmi Complex,-- Fafadih, Raipur, DistrictRaipur(CG) Versus
Respondents Compiainant		1. 2.	Vijay KumarPali, S/o Lats B.RsPali, Wo Bajrang Chowk, Mathpara, >Ralpur, Poiice Station - Purani Basti, Dist.Raipur(CG) State of Chhattisgarh, Through District MagistrateDistrictRaipur(CG) And

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Cr,M,P.No.334of2010 Petttionsrs 1. Anteh Shah, S/o Premji Shah, Aged Applicanis about35years, 2. Smt. Rupai Shah, W/o ShH Anish Shah, Both R/o C-304, Laxmi Complsx, Fafadih, Raipur, District Raipur (CG) Versus RssBondents 1. Vijay Kumar Paii, S/o Late B.R.F^aii, R/o Comptainam Bafrang Chowk, Mathpara, Raipur, Police Station A- ' purani Sasti, Dist.Raipur (CG) 2. State of Chhattisgarh, Through Districi Magisfrate District Raipur (CG)

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~ 2^

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(Petitions unde'r SeAtion 482 ofthe CrP.C.)

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(SB: Hon'ble Mr. T.P. Sharma, J.)

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Present:

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Mre. Fouzia Mirza, counsel forthe petitioners.

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Mr.Y.C.Sharma, counssl for respondent No.1 .

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Mr.Rakesh KumarJha, Dy.Govt.Advocatefor respondsnt No.2/State.

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ORAL ORDER

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(Passed on 7"* January, 201 1)

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Cr.M.P.Nos.332/2010, 333/2010 and 334/2010 fiied against the order dated 7.4.2010 passed by the Sessions Judgs, Raipur in Criminal Revision Nos.26/2010, 28/2010 and 27/2010 ars being disposed of by ihis common

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. order.

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^.'.. • • ^

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2, Brief facts necessary for disposal of thess petitions are ihat respondent No.1 ,has filed complaint under Section 138 of the Negotiable tnstrumsnts Act, 1881 (for^{short'theAct>)againstths} petitioners.^Samsis pending

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before the Judicial Magistrate First Class, Raipur. After entering in defence in stfch case, the present petitioners have fiied an appiication for examination of the alleged cheque by handwriting expert. After hearing the parties, ieamed Judicial Magistrate First Class, Raipur has dismissed the appiication vide order dated 21.1.2010. Sams was challenged before ihe Sessions Judge, Raipur in Criminal Revision Nos.25/2010, 28/2010 and 27/2010. Leamsd Sessions Judge, Raipurwhiie affirming the order passed by the JMFC, Raipur has dismissed the revision vide order dated 7.4.2010.

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I have heard leaned counsel for the parties, perused the petition, order impugned and other documents filed on behalf ofthe petitioners.

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Leamed counsel for the petitioners vehemently argued- that in case instituted otherwise on police report, the present psiitioners have right to adduce their evidence and sxamine the expert evidencs in terms of Seciion 247 read with Section 243 ofthe Cr.P.C., they have exercised their right for examining the expert, but same has besn illegaiiy denied by the trial Court and while dismissing the revision, the revisional Court has aiso not

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. considered the right ofthe petitioners and thereby committsd iilegality.

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On the other hand, iearned counsel for the respondents opposed ths petitions and argued that after ciosing of' defence and on ths date of finai

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hsaring of ths case, the petitioners have fiied the aforesaid appiication for examination of the documents and examination of expert. it shows that oniy with a view to detay in trial the petitioners have filed ths aforssaid appiication. In application for such examination of documents by expe," even the petstioners have not mentioned the fact that who has signed the cheque and whether they have issued the' chsque or not. Oniy caid allegation has been made in the apptication. Aropie opportuniiy has been given to the petltioners, thsrefore, considering vexatious apptication, the triai Court has'rightly rejected the application filed on behalf of the petitioners which has been affirmed by ttie revisional Court ahd thereby isoth the Courts beiow have not committed any illegality warranting any infereni^.

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Powerynder Section 482 of the Cr.P.C. is exceptional in nature and shouSd be used sparingly. While deating with exercise tef power under Section 482 ofthe Cr.P.C. inthe matter of s. Zanciu Pharmaceuticai Works Ltd. and others v. Md. Sharaful Haque and others the Suprerrie Court has held ttius,

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. "8. Exereise of power under Section 482 of the Code in a cass of this nature is the exception and not the rule. The Sectfon does

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"rft2~eenfer any new powers on the High Court. t,it only saves the inherent power which the Court possessedbefor&the^nactmant ofthe Code. It envisages three circumstances under wrtiteh ths inherent jurisdiction may be exereised, namely, (i)togive effesato an orijer under the Code, (ii) to prevent abuse of the process or court, and ^iii)to otherwise secure the erids'pfjustice.it is neither possibte nor desirable to lay down any infiekitote ruie which wouid govern the exereise of inherent jurisdiction........."

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' t. . -

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7, As per order impugned passed by the trial Court, four opportuniuss have besn given to the petitioners for adducing evidence.'even they have examined one. defence witness Rajesh Shah i.e. one person and after closing of-defence evidence when the case was fixed for fina) argumentS, then only the,Retitioners have filed the appUcation for examination of the documents andtexpert, in which evsn they have not atiegeri^thatwho'has signed the cheque, whether they have agned the chequs w not, whether they want to cteny that they have not signed the cheque or tbey have not made entries in the chaque other than the signature, even they have not

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1A!R2005SC9

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aiieged that whether respondent No.1 has made 3l!eg3tion in his complair.t tfjat one person has executed and fflled the cheque.

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^^i.

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In these circumstances, by dismissing bald application atfer providing ycomplete opportunity neither the trial Court nor the revisionai Court has |commBed any Ulegality. 1 do not nnd any scope fbr interferencs in exercise oi1 inherent jurisdictiorr under Section 482 of the Cr. P.C. v

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Consequently, the petitions are liabie to be dismissed and ars hereby

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Blig

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dismissed.

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_ _ SdlT.P. Sharma Judge

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-;.

Anish Shah and Anr. v. Vijay Kumar Pali and Anr.

Case brief

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Anish Shah and Anr. v. Vijay Kumar Pali and Anr.

Case brief

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