By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the order dated 29th January, 2007 passed by the learned 10th Additional Senior Civil Judge, Gandhinagar below Exhibit 25 in Criminal Case No.6374 of 2004.
Short facts of the case is that the respondent No.2 herein-original complainant is doing business of money lending. On 01st January, 2004 the respondent No.2 lent Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) to the present applicant by way of advance. On 02nd September, 2004 the present applicant had issued a cheque beraing No.180429 of Rs.1,50,000/- drawn on Union Bank of India, Nanpura Branch, Surat from Account No.12077. When the said cheque was deposited by the respondent No.2 with his banker, I.e. Gandhinagar Nagrik Cooperative Bank Limited, Gandhinagar, on 03rd September, 2004, the same was dishonoured with endorsement "insufficient balance in account". Therefore, the respondent No.2 issued a statutory notice to the applicant on 20th September, 2004 and the same was replied by the applicant on 09th October, 2004. Thereafter, the respondent No.2 filed Criminal Case No.6374 of 2004 before the learned Judicial Magistrate First Class, Gandhinagar. In the said complaint, complainant did not examine himself, however, the complainant appointed one Power of Attorney and the said Power of Attorney gave her deposition. Thereafter closing pursis was filed on 30th November, 2006. Thereafter, another application was moved at Exhibit 25 by the respondent No.2 stating that original documents have not been exhibited and therefore, the same may be exhibited. The said application was objected by the applicant and his objection was endorsed. However, ultimately the said application Exhibit 25 has been granted by the learned Judge and hence, the applicant has approached this Hon'ble Court by way of present revision application.
Heard Mr.Pravin Panchal, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State and Ms.Kruti Shah, learned counsel for respondent No.2-original complainant.
Mr.Panchal, learned counsel for the applicant, states that they have no instructions in the matter. They have written letter to the applicant for instructions, but the applicant has not responded to the same. However, Mr.Panchal has requested to decide the matter on its merits. He has contended that the order passed by the learned Judge is contrary to provisions of law and is required to be quashed and set aside. He has contended that once the advocate for the complainant had given closing pursis, then it was not open for him to submit application seeking permission to allow him to lead additional evidence to be exhibited. He has contended that the learned Judge has committed grave error in allowing the said application. He has contended that the learned Judge has not followed the provisions of the Evidence Act. He, therefore, contended that the order impugned is required to be quashed and set aside.
As against this, Ms.Shah, learned counsel for the respondent No.2-original complainant, states that the order passed by the learned Judge is absolutely just and proper and need not required any interference. She has contended that it is true that after filing closing pursis, the applicant had made an application to lead additional evidence to be exhibited, but looking to the decision rendered by the Apex Court in Bipin Shantilal Panchal Vs State of Gujarat reported in 2001 AIR SC 1158, the learned Judge has not committed any error in passing the impugned order. The application Exhibit 25 was objected by the present applicant and the said objection was endorsed by the learned Judge and only after considering the objections of the present applicant as well as provisions of the Act, has passed absolutely just and proper order. She, therefore, contended that present application may kindly be rejected.
Heard learned counsel for respective parties and also perused papers produced before me. It is true that after filing closing pursus, advocate for the respondent No.2-original complainant made an application to lead additional evidence, but looking to the observations made by the Apex Court in the case of Bipin Shantilal Panchal (supra), I am of the opinion that the learned Judge has not committed any error in passing the impugned order.
In view of above, present revision application deserves to be dismissed and is hereby dismissed. Interim relief, if any, shall stand vacated. Rule is discharged. Office is directed to send Record and Proceedings, if any, to the Court concerned forthwith.
(Z.
K. Saiyed, J) Anup Top