PUSHP HOLDINGS LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant has challenged the order of the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai dated 13.8.2007, refusing to permit the applicant to insert the verification clause in the affidavit filed by him in lieu of the examination in chief.

(2.) The facts in the present case are as follows: The applicant filed a complaint under section 138 of the Negotiable Instruments Act against Respondent No.2 on 7.10.2002. The verification of the complainant was recorded on 18.8.2003. Process was issued thereafter on 8.12.2003 against Respondent No.2. The applicant filed an affidavit in lieu of examination in chief on 2.4.2004. On 13.10.2005, the respondent No.2 preferred an application before the Metropolitan Magistrate praying for an acquittal on the ground that the affidavit of evidence was not affirmed and because it was not appended with a verification clause. This application was rejected on 2.5.2006. The applicant then moved the Court for a de novo trial so as to enable him to file a fresh affidavit of evidence with the verification clause in order to cure the defect in the affidavit. This application was not pressed by the applicant and was withdrawn. The applicant then preferred an application on 18.9.2006 for permitting him to insert the verification clause without changing any averments in the affidavit of evidence. This application was opposed by Respondent No.2. After hearing the parties, the Metropolitan Magistrate has rejected the application preferred by the applicant. Aggrieved by this decision of the Metropolitan Magistrate, the applicant has filed the present criminal application u/s 482 of the Criminal Procedure Code. The petitioner had also preferred a Civil Revision Application against the order of the Metropolitan Magistrate which was dismissed by the Sessions Court as the order impugned was interlocutory.

(3.) The learned advocate for Respondent No.2 raised a preliminary objection regarding the maintainability of this application. He submits that the present application amounts to a second revision and therefore, it ought to be dismissed. Several judgments have been relied on by the learned advocate on this issue. However, a perusal of the order of the Sessions Court indicates that the revision was dismissed on the ground that the Court had no jurisdiction in view of the fact that the order impugned was not a final order but an interlocutory order. Therefore, the submission raised by the learned advocate objecting to the maintainability of the present application u/s 482 is unsustainable.