KASHINATH TAPURIA Vs. LEELA WELINGKAR AND OTHERS

JUDGEMENT

(1.) THE rule raises an interesting question whether the Magistrate should first decide the question, before examination of the accused under section 313 of the Code of Criminal Procedure, 1973, whether the evidence of a witness recorded before framing charge should be expunged, or should be treated as non est, since the witness was not available for cross -examination by the accused after the charge was framed.

(2.) FOR determining the question it would not be necessary for me to state the full facts of the case. A synopsis, sufficient for the determination of the question, would suffice. The first respondent filed a complaint in the Court of the Additional Chief Metropolitan Magistrate, 33rd Court at Ballard Estate, Bombay, against the petitioner -accused No. 1 and another accused, who is respondent No. 2 in this petition and who has been served but he has not appeared, for having committed an offence under sections 120 -B and 408 of the Indian Penal Code. During the period from 25th February 1964 to 9th March 1972 Shri Haridas Mudhra is alleged to have been in the management and control of the complainant Turner Morrison & Company Limited under the circumstances mentioned in the complaint. The petitioner was a Director in that Company during that period. On 30 -6 -1969 the complainant Turner Morrison & Company Limited opened an account with the Bank of Maharashtra. It appears that two of the Directors of the complainant Company were authorised to create an equitable mortgage of fixed assets of Messrs Mallet Welding Works, a division of the complainant -Company. The said account was opened in order to enable the complainant -Company to raise funds on security of the fixed assets. It is alleged by the complainant -Company that by a subterfuge adopted by the petitioner in collusion with respondent No. 2, the petitioner -accused No. 1 managed to obtain Rs. 7,00,000 for the benefit of himself. The modus operandi adopted by the petitioner -accused No. 1 and respondent No. 2 - accused No. 2 is that on 2 -7 -1969 Rs. 7,00,000 were withdrawn from the Bank of Maharashtra in favour of one Kashi Prasad Kedia, who is the witness examined in this case before the charge was framed. On the same day, i. e., on 2 -7 -1969, Kashi Prasad Kedia transferred the said amount of Rs. 7,00,000 in favour of Basant Trading Company, a financing Company. On the same day, i. e., 2 -7 -1969, Basant Trading Company issued two drafts, one for Rs. 4,00,000 in favour of Hind Product Pvt. Ltd., Calcutta, and the second for Rs. 3,00,000 in favour of Tapuria and Sons Pvt. Ltd. It appears that the said two drafts were encashed by the payees thereof on 7 -7 -1969. Hind Products Pvt. Ltd, Calcutta, and Tapuria & Sons Pvt. Ltd. got their respective amounts transferred in favour of the present Petitioner -accused No. 1. It is in these circumstances that the complainant -Turner Morrison & Co. Ltd. have alleged that the Petitioner -accused No. I has misappropriated the said amount of Rs. 7,00,000 in conspiracy with respondent No 2.

(3.) THE learned Metropolitan Magistrate thereafter framed a charge under section 120 -B read with section 408 of the Indian Penal Code against both the accused, viz., the petitioner and the respondent No. 2, and under section 408 of the Indian Penal Code against the petitioner. Thereafter, the petitioner required witness Kashi Prasad Kedia for cross -examination. Some adjournments were granted at the instance of the prosecution for producing witness Kashi Prasad Kedia for cross -examination. It appears that the matter was referred to by the Court to Police Inspector Kamat of the D. C. B. C. I. D., Bombay, for tracing witness Kashi Prasad Kedia. On 4th February 1980 Police Sub -Inspector Kamath filed a report that Kashi Prasad Kedia was not traceable. Thereafter the matter progressed and the prosecution closed its case and the case is now posted for examination of the accused under section 313 of the Code of Criminal Procedure.