TRAINIPOLYTEX PVT LTD Vs. GOPAL AND CO

JUDGEMENT

(1.) THIS revision arises out of the order dated 6. 1. 2007 passed by the S. D. J. M. (S), Cuttack in I. C. C. Case no. 251 of 2002 rejecting an application under Section 245, Cr. P. C.

(2.) THE complainant-opposite party, which is a partnership firm, filed I. C. C. Case No. 251 of 2002 under Section 138 of the N. I. Act (hereinafter referred to as 'the Act') in the Court of the S. D. J. M. , (S), Cuttack against accused-petitioner No. 1, a private limited Company, and accused petitioner no. 2, its Director. It is alleged that accused-petitioners issued a cheque bearing No. 0762683 dated 6. 4. 2002 for Rs. 8,14,140/- in favour of the complainant. On presentation, the said cheque was dishonoured by the bank. Notice under Section 138 (b) of the act was duly served on the petitioners. On receipt of notice, the petitioners in their reply stated that the cheque was issued for the purpose of security and not towards the dues. The S. D. J. M. took cognizance and issued notice to the petitioners, who on receipt of the same appeared before him. After examination of one of the witnesses by the complainant-opposite party, the petitioners filed an application under Section 245, Cr. P. C. with a prayer to discharge them and to drop the proceeding initiated under Section 138 of the Act on the ground that the cheque in question had been the subject-matter of dispute between the complainant and the accused-petitioners in T. S. No. 1532 of 2002 before the 5th City Civil court, Calcutta, who by his judgment held that the notice under Section 138 (b) of the act was fraudulent, illegal and null and void. The complainant-opposite party filed its objection to the said petition. Learned s. D. J. M. after hearing the parties rejected the said application on the ground that since the trial has already commenced and one of the witnesses has been examined, the Court is to pass an order of acquittal or conviction under Section 255, Cr. P. C.

(3.) MR. Mishra, learned Counsel for the opposite party submitted that Sections 40 and 44 in Chapter-II of the Indian Evidence act, which is titled as "judgments of Courts of justice, when relevant" are to be read together. None of these sections can be read in isolation. Therefore, the judgment and decree in T. S. No. 153 of 2002 passed ex parte by the City Civil Court No. 5 against the opposite party is not relevant so far it relates to the issue pending in the present proceeding. That apart, the said judgment and decree have been obtained by fraud.