AMBALAL RANCHHODLAL PATEL Vs. BHIKHABHAI PUNJABHAI

JUDGEMENT

(1.) A criminal complaint was filed by the Secretary of Society called Lamba Seva Sahkari Mandli Ltd. against the petitioner who was serving as a Clerk in the said Society contending that the petitioner has misappropiated an amount of Rs. 19 296 P. as there was shortage of stock for an amount of Rs. 14 907 and cash balance for sale of the goods worth Rs. 4389 P. was not deposited by him with the said Society. The said complaint was sent for investigation under sec. 156(3) of the Criminal Procedure Code by the learned Magistrate. The investigating officer thereafter submitted a chargesheet against the petitioner. After examining certain witnesses the prosecution declared that it does not want into examine any more witnesses and its evidence be treated as having been closed. On 30/05/1984 the petitioner filed an application Ex. 182 before the Court contending that persons who had purchased the goods from the Society during the period between 9-10-80 and 26 be examined as Court witnesses to do complete justice between the parties. It was the case of the petitioner that he was only acting as a servant of the Society as a stopgap arrangement after his resignation. He was merely preparing bills at evening time at the instance of the complainant and not collecting the money. He had not received any amount represented by the disputed bills. He submitted that persons named in the said bills who had purchased the goods from Society were the relevant and material witnesses and in the interest of justice they may be examined as Court witnesses for arriving at just decision in the case.

(2.) After hearing both the parties the Chief Judicial Magistrate Narol by his judgment and order dated 21/06/1984 allowed the said application. He arrived at the conclusion that in the case copies of the bills are produced The bills are also proved. He held that for deciding justly whether the petitioner had received the sale amount from the witnesses or not it would be necessary in the interest of justice to examine the said witnesses. He considered the fact that the petitioners defence was that he had not received the said amount. He further held that as the case pertains to the Co-operative Society merely on the basis of preparation of bills by the petitioner it should not be held that the case against the petitioner was proved and that for proving the case it was necessary to examine the said witnesses. While arriving at the said conclusion he had taken into consideration the complainants case and the defence version and had granted the application. He further held that for having fair trial to the prosecution as well as to the defence it was necessary to examine the witnesses.

(3.) Against the said judgment and order the original informant preferred Criminal Revision Application No. 512/84 before the Sessions Judge Ahmedabad (Rural) at Narol. The learned Sessions Judge allowed the said revision application by the judgment and order dated 18-8-1984. He held that the learned Magistrate had not given reasons why the said witnesses were required to be examined and the jurisdiction under section 311 of the Criminal Procedure Code can be exercised only in those cases where it is necessary for just decision of the case to examine the witnesses. He held that the order passed by the learned Magistrate was not judicial as no reasons were given by him. He further held that the trial Court was ignorant about the Courts power under section 311 of the Criminal Procedure Code.