RAVINDRANATH SHINDE Vs. SHANKARAPPA

JUDGEMENT

(1.) THESE Criminal Petitions are filed against a common order passed by the Civil Judge & JMFC, Shiggaon in CC No. 69/2004 dated 25.2.2014 on the applications filed by the petitioner herein (petitioner before the trial Court) u/s. 91 and 311 of Cr.PC. It is an admitted fact that the complainant by name Shankarappa filed a case against the accused (petitioner herein) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. During the course of trial, the accused has taken up the defence that the disputed cheque involved in the said case was lost by him and he filed a complaint in that regard in the Cubbon Park Police Station and the Police have issued an endorsement on 22.1.2004 with regard to the complaint pertaining to the missing of the cheque. During the course of evidence, that endorsement Ex. D2 was got marked by the accused. In order to disprove this particular document, the complainant also obtained some documents from Cubbon Park Police Station by filing an application under the Right to Information (RTI) Act. The said document was also marked before the Court as Ex. C1. PW2, the Police Inspector, City Special Branch, Bangalore has also been examined to prove Ex. C1. In the evidence, he has stated that he has issued Ex. C1. But during the course of cross examination, he has stated that on 22.1.2004, he was not working in the Cubbon Park Police Station and he has not seen the C.Mis. Register before coming to the Court. Therefore, the document Ex. D2 perhaps had not been confronted to this witness in order to elicit that Ex. D1 which is the endorsement alleged to have been issued by the Cubbon Park Police. Station. Ex. C1, the document copy which is produced before this court shows that an endorsement was issued stating that on 22.1.2004 Sri. Ravindranath Shinde (accused) lodged a complaint before the Cubbon Park Police Station, but on examination of the documents maintained in their Police Station, it was found that there was no complaint lodged by one Sri Ravindranath Shinde on 22.1.2004 with respect to loss of cheque No. 098158 is available. Another document which is marked at Ex. D1 issued by the Police Inspector to one Sri Karibasappa shows that the Police Inspector attached to Cubbon Park Police Station issued an endorsement stating that the said Karibasappa has claimed the information under the Right to Information Act and in pursuance of the same, an endorsement was given after examination of the C.Mis. Register in the Cubbon Park Police Station to the effect that on 29.1.2004, an acknowledgement was issued in C.Mis. No. 105B/2004. They have also stated that no documents pertaining to the said Registration Number are available in the Police Station.

(2.) IN view of the above said documents, the petitioner made an application u/s. 91 of the Cr.PC. in order to set at rest the anomaly found in these documents to summon the C.Mis. Register in which C.Mis. 105B/2004 is recorded, to ascertain whether any complaint was lodged by the accused and on the basis of such complaint, C.Mis. was registered and acknowledgement was given as per Ex. D2. The anomaly raised by the accused as argued by the learned Counsel is that in Ex. C1 there is absolutely no mention that any case has been registered in C.Mis. case, as stated in Ex. D1 and it is also stated in Ex. C1 that no complaint was given in that regard. Ex. D2 discloses that it is an endorsement issued by the police on 22.1.2004. The said document refers to a complaint regarding loss of missing of cheque No. 098158 lodged before the Cubbon Park Police Station, Bangalore. Therefore, whether on 22.1.2004 any complaint has been lodged by the accused and the same was registered as C.Mis. 105B/2004 or not and if so what are the contents of the said complaint and whether any such complaint has been lodged by the accused on that particular day or not, or whether any complaint was lodged on 29.1.2004 and the same was registered in C.Mis. 105B/2004 and what exactly the entries made in C.Mis. Register, to bring all those facts before the Court perhaps the accused has made an application u/s. 91 to divulge all these aspects by means of production of the said original register before the court. The said application was dismissed by the trial Court. Though the learned Magistrate has considered the ruling of the Hon'ble Supreme Court reported in : AIR 2007 SC 3029 [Iddar & Others Vs. Aabida & Another], but he failed to understand the real object behind the said ruling. The main object is to provide an opportunity to the parties in the proceedings particularly to the accused.

(3.) IN my opinion, the learned Magistrate ought to have provided such an opportunity to the accused. One more aspect to be borne in mind by the trial Court is that the contention or the defence of the accused is that he lost the cheque prior to 22.1.2004 itself and he makes an allegation that the complainant came to the possession of this cheque by some clandestine manner and falsely implicated the accused into the crime alleged u/s. 138 of the Negotiable Instruments Act. If the accused is able to establish his defence, that will definitely go to the root of the complainant's case. Therefore, when such an opportunity is sought, to prove the defence of the accused, naturally the court has to provide an opportunity to the accused.