SUBASH CHAND BARJATYA Vs. MADHU MISHRA

JUDGEMENT

(1.) By virtue of the present petition under Section 482 read with section 397 Cr.P.C. the petitioner has challenged the order dated 8th July, 2008 passed by Sh. Sudesh Kumar, the learned Metropolitan Magistrate, New Delhi titled M.S. Mishra Vs. Subhash Chand Barjatya in complaint filed under Section 138 of the Negotiable Instruments Act.

(2.) Briefly stated the facts of the case are that the respondent no. 2 herein filed a complaint through Power of Attorney under Section 138 of the Negotiable Instruments Act against the present petitioner. After recording the statement of the petitioner under Section 313 Cr.P.C. he was given an opportunity to adduce his evidence in his defence. The petitioner entered into Crl.Rev. P. No. 563/2008 Page 1 of 5 the witness box in pursuance to the provisions of Section 315 Cr. P.C. and after testifying on oath the petitioner was cross examined on behalf of the respondent no.2. On 15th March, 2007 and the matter was adjourned to 1st June, 2007. Thereafter the respondent no. 2 filed an application under Section 311 Cr.P.C. stating therein that as the accused /petitioner Subhash Chand Barjatya had appeared in the witness box as DW-1. He testified that an investment of Rs.75,00,000/- was made by one Abhishek Verma of M/s Infocom Digital out of which a sum of Rs.14,00,000/- was paid to the respondent no.2 and his wife Kiran Mishra on account of the fact that this was considered to be a lucrative investment as it would get a higher return. Accordingly, the respondent no. 2 filed an application to enter into the witness box himself and rebut the evidence adduced by the accused petitioner making the statement to the effect that certain payment have been made by Sh. Abhishek Verma, M/s Infocom Digital to the respondent no.2. This application was allowed by the learned Metropolitan Magistrate on the ground that earlier the respondent no. 2 had filed a complaint through his power of attorney and since the power of attorney holder had only testified, therefore, it was necessary in the interest of justice and a just decision of the case, to permit the respondent no. 2 to enter into the witness box as a court witness. The learned Metropolitan Magistrate relied upon the cases of the Apex Court in B. Chhagan Lal Dagar Vs. State 2004 SCC (Crl.) 183 and Edar & Ors. Vs. Abid JT (2007) (IX) SC 552. It was also observed by the learned Metropolitan Magistrate that so far as the petitioner is concerned, he will have an opportunity to cross-examine the witnesses and accordingly the application was allowed subject to payment of cost of Rs.5,000/- to the present petitioner.

(3.) The petitioner/accused feeling aggrieved by the aforesaid order has challenged the same by virtue of the present petition.