BRAJESH SINGH Vs. BALMUKUND TAMRAKAR

JUDGEMENT

(1.) The present petition has been filed by the applicant herein aggrieved by the order dated 13.11.2017 passed by the Court of learned Second Additional Session Judge, Shahdol in Criminal Revision No. 300046/2016 by which the said criminal revision was dismissed and the order dated 18.07.2016, passed by the Court of the learned Judicial Magistrate First Class in Case No. 370/2009 (Balmukund Tamrakar v. Brajesh Singh) , was upheld. By the order dated 18.07.2016, the learned Judicial Magistrate First Class has dismissed an application moved by the petitioner under section 91 of Cr.P.C., 1973 for taking on record an agreement between the petitioner and the respondent which would reveal that the cheque of Rs. 10,00,000/- that was given to the respondent by the petitioner, was a cheque given by way of surety. The order of the learned trial Court is Annexure A-2 to the petition from page 13 to 18. The said application has been dismissed by the learned trial Court on the ground that it was filed to delay the proceedings as it was belatedly moved at the stage of final arguments after the passage of fifteen months.

(2.) The impugned order passed by the learned Court of Sessions is Annexure A-1 which is from page 8 to page 12 of the petition. The learned Court of Session while dismissing the criminal revision has observed that there has been a delay of 15 months in moving the application under section 91 of Cr.P.C , 1973after the commencement of the defence evidence. However, the revision petition was dismissed on the ground that it was not maintainable as the learned Court below held, that an order dismissing an application under section 91 of Cr.P.C , 1973is an interlocutory order.

(3.) The brief facts essential to appreciate the present case are as follows. The petitioner had entered into an agreement dated 29.07.2008 with the respondent for the sale of a house. The petitioner is the seller and the respondent is the buyer. The petitioner is stated to have received some amount and as a security he had given a cheque of Rs. 10,00,000/- to the respondent. A photocopy of the said agreement is Annexure A-3 to the petition from pages 19 to 20. It prima-facie reflects that the said cheque was given by way of security. In order to further buttress his arguments, learned counsel for the petitioner has drawn the attention of this Court to Annexure A-6 from pages 26 to 28, which is the complaint filed by the respondent under section 138 of the Negotiable Instruments Act. Paragraph No. 5 of the said complaint refers to the agreement dated 29.07.2008 and also refers to the cheque for Rs. 10,00,000/-, whose number is reflected in the said complaint as 0048807 drawn on the Union Bank of India at its Shahdol branch. After the closure of the complainant's evidence the defence led its evidence and after a passage of 15 months from the commencement of the defence evidence, the application under section 91 of Cr.P.C., 1973 was filed at the stage of final arguments.