YESHWANT SAKHARAM CHAVAN Vs. ANKUSH TUKARAM BHAIRAVKAR

JUDGEMENT

(1.) Heard the learned Counsel for the petitioner, who is the original complainant.

(2.) The petitioner had filed a case under Sec. 138 of Negotiable Instruments Act and it was registered as Criminal Case No.951/2003 before the J.M.F.C. Khed. After trial, the Magistrate convicted the accused No.1, who is respondent No.1 before this Court. He challenged the conviction and sentence in Criminal Appeal No.13/2006. The learned Addl. Sessions Judge, Khed, came to conclusion that material incriminating circumstances against the accused were not put to him under Sec.313 of Cr.P.C. and thus the accused was not given opportunity to explain those circumstances. In view of this, the learned Addl. Sessions Judge by judgment and order dated 8.12.2007 set aside the conviction and remanded the case back to the trial court with a direction that the statement of the accused under Sec. 313 should be properly recorded by putting incriminating circumstances to him. The Sessions Court further directed that after recording the statement of the accused, the trial Court shall proceed to hear the argument of both parties and decide the case afresh again. After remand, the statement of the accused under Sec.313 was recorded as per directions. After recording of the statement, the accused moved an application Ex.83 and requested the trial court to issue summons to a person, whom he wanted to examine as a defence witness.

(3.) The learned Counsel for the petitioner vehemently contended that the learned Addl. Sessions Judge while setting aside the conviction and remanding the case back to the trial Court had specifically directed the trial Court to put the incriminating circumstances to the accused under Sec. 313 Cr.P.C. and after recording the statement, to hear the argument and to dispose of the matter as per law. As per the learned Counsel, that clearly restricted the power of the trial Court against recording the defence witness. According to him, after the statement u/s. 313 was recorded again, and arguments were heard, there was no scope for the accused to lead defence evidence. I am afraid, these arguments are against the basic principles of the Criminal Jurisprudence and natural justice.