YOGENDRA BHAGATRAM SACHDEV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this application, presumably under section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke the exercise of powers vested in this Court ex debito justitiao to prevent apprehended abuse of the procedural law and miscarriage of justice from taking place. The apprehension arises allegedly on account of the order passed by the Sessions Court, Bombay, rejecting Miscellaneous Application No. 376 of 2000 under section 391 of the Code of Criminal Procedure, 1973. The appellant sought to examine himself on oath in order to enable him to discharge the burden to rebut the presumption of law under sections 138 and 139 of the Negotiable Instruments Act. The said Miscellaneous Application No. 376 of 2000 is filed in Criminal Appeal No. 330 of 2001 from the order dated 26-11-2002 passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, in C. C. No. 1173/s/95 convicting the appellant-accused Yogendra Bhagatram Sachdev under section 138 of the Negotiable Instruments Act and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 5,000/-, in defaulter to suffer rigorous imprisonment for three months with a further direction to the accused to pay an amount of Rs. 1,00,00,000/- as compensation to the complainant.

(2.) THE appeal was filed and was admitted on 21-12-2001. At the stage when the appeal has become ripe for hearing, the applicant-accused files the said application under section 391 of the Code of Criminal Procedure, praying that the appellant be allowed to lead cogent evidence which is on record by way of documents, but not by way of oral testimony and that the said Court, that is to say, the Sessions Court either take his evidence itself of direct it to be taken by the learned Magistrate subject to Chapter XXIII, as if it was an enquiry. The said application, as stated above, has been rejected by judgment and order dated 21-11-2002 passed by the Additional Sessions Judge, Greater Bombay.

(3.) TO appreciate the issues in controversy, it is necessary to give the brief facts of the case. The applicant and respondent No. 2 were both directors of Reliance Silicon, situated at Navi Mumbai. Differences arose between the complainant and the applicant-accused. An amicable settlement was arrived at between the parties to the effect that the complainant shall transfer his shares to the accused and resign from the company and, in consideration thereof, he should be paid Rs. 50,00,000/- by the accused. Pursuant to the said understanding, blank share transfer application forms were signed by the complainant and handed over to one Shri Sanghvi, who acted as intervener, and ten cheques of Rs. 5,00,000/- each were handed over by the accused to Shri Sanghavi, who handed over the said cheques to the complainant as per the understanding. The complainant, that is, respondent No. 2 deposited the cheques with his bankers. However, the said cheques were dishonoured. After compliance of necessary formalities, namely, serving demand notice, etc. , a complaint came to be filed before the Court of the learned Magistrate and numbered as Criminal Case No. 110/s/1998.