NARENDRAKUMAR DHIRAJLAL PUJARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has filed this petition under Section 397 of the Code of Criminal Procedure, 1973, inter-alia, challenging the order dated 05.03.2005 passed by the learned Additional Sessions Judge, Viramgam in Criminal Revision Application No.13 of 2004 on the ground that the learned Sessions Court patently erred in not appreciating the fact that the order passed by the learned JMFC in Criminal Case No.914 of 1997 did not call for any interference at all.

(2.) THE facts in brief leading to filing of this petition are set out as under :- THE present petitioner, as per his say in the petition, is the complainant who was constrained to take out proceedings under the provisions of Negotiable Instruments Act as the cheque of respondent No.2 for an amount of Rs.1,00,000/- issued to him for fulfilling his liability was returned by the Bank with an endorsement ?funds insufficient?. Despite the notice, the amount of the cheque remained unpaid. THE Negotiable Instruments Act complaint came to be filed in the Competent Court on 30.04.1997, which came to be registered as Criminal Case No. 914 of 1997. THE Court, after recording verification on the part of the complainant, issued process in the aforesaid proceedings of Criminal Case No. 914 of 1997 and application Exh. 54 came to be filed by the complainant on 24.12.2003, inter-alia, praying that the complainant be re-examined for the reasons stated in the application. THE said application came to be filed on completion of the cross-examination of the complainant. THE reason for seeking re-examination was indicated that certain pertinent questions were not put to him in the cross-examination, nor has the explanation therefor though available, could not be placed on record and hence, the re-examination of the complainant is required. THE said application Exh. 54 filed on 24.12.2003 was slated for hearing and ultimately, the learned JMFC, Viramgam vide his order dated 26.12.2003 granted the said application allowing the re-examination of the complainant. THE order dated 26.12.2003, partly allowing the application qua paragraph No.3 of the application was assailed by the present respondent No.2 ? original accused by way of Criminal Revision Application No. 13 of 2004 in the Court of learned Additional Assistant Sessions Judge, Viramgam (Fast Track Court). THE said revision application was preferred on the ground that the application ought not to have been allowed. THE permission for re-examination is granted at the time when the questions at length were put to the original complainant by way of cross-examination. THE permission for re-examination was granted qua the particulars mentioned on the cheques ? Negotiable Instruments which was within the knowledge of the complainant and hence, the same could not have been granted. THE said revision application was filed on 16.02.2004. THE said application appears to have been resisted by the present petitioner on the ground that the order passed by the learned JMFC below Exh. 54 being interlocutory order, the Revision Application was not competent to be maintained thereon. It was also argued that the limited prayer of the original complainant was accepted qua limited re-examination and therefore, no prejudice was likely to be caused to the respondents. THE Court allowed the said revision application and quashed and set aside the order passed on 26.12.2003 below Exh. 54 accepting the submission of learned advocate for the respondents. This order dated 05.03.2005 is sought to be assailed in this revision application on the grounds mentioned in the memo of the application. This Court on 20.04.2005, while issuing notice calling upon the other side to appear, passed order of interim relief in terms of Para 12(B) of the petition staying further proceedings of Criminal Case No. 914 of 1997 pending before the Court of learned JMFC.