PARESHBHAI M VAGHANI Vs. PANKAJ MANSUKHBHAI SEJPAL

JUDGEMENT

(1.) This petition under Article 226 and 227 of the Constitution of India is directed against the order of the learned Sessions Judge, Rajkot dated 10-5-2000 made in criminal revision application No.49/2000 quashing and setting aside thereunder the order dated 8-3-2000 of the Judicial Magistrate First Class, Rajkot below Ex.5 in criminal case NO.370/97.

(2.) Before proceeding further in the matter, it is to be stated that this title of the petition, "In the matter under Articles 226, 227 of the Constitution of India" is wholly misconceived. This petition either can be under Article 226 or 227 of the Constitution of India. If we go by the facts of this case and particularly with reference to the provisions as contained in section 397 of Cr.P.C. this petition is maintainable only under Article 227 of the Constitution. Accordingly, this petition is treated and considered under Article 227 of the Constitution of India.

(3.) The facts of the case are that the petitioner-complainant filed a complaint against the respondent-accused for the offence under section 138 of the Negotiable Instruments Act. In the complaint, it is stated that the respondent has given the cheque for an amount of Rs.1,22,000.00 to the petitioner and on presenting of the same to the bankers of the respondent-accused, it was dishonoured. After receipt of dishonoured cheque, the petitioner gave notice to the respondent-accused for payment of amount of cheque within stipulated period, but that has not been done and accordingly, as the offence has been committed punishable under sec. 138 of Negotiable Instruments Act, this complaint has been filed. The petitioner submitted list of documents at Ex.55 with all the original documents in the Court of Judicial Magistrate First Class, Rajkot. After recording plea of the accused and before oral evidence is started, this production was objected by the respondent-accused. Learned Judge under its order dated 8-3-2000 rejected the production of the documents on the ground that such documentary evidence could have been produced at the earlier opportunity. Against this order, the petitioner filed a criminal revision application in the Court of Sessions Judge, Rajkot, which came to be finally decided by the Additional Sessions Judge, Rajkot, under its order dated 10-5-2000. This revision application was dismissed on the ground that it is barred by subsection (2) of section 397 of Cr.P.C.. It is held that the order passed by the learned trial court is an interlocutory order. Hence, this petition before this Court.