SH.I.HASSAN Vs. AJAY DUTT

JUDGEMENT

(1.) THE present petition is directed against the order dated 09.11.2010 passed by the learned Judicial Magistrate, 1st Class, Gurgaon, whereby the defence evidence of the petitioners was closed because of the mistaken statement made by the petitioners in the absence of their counsel. by the learned Judicial Magistrate, 1st Class, Gurgaon, thereby declining the prayer of the petitioners for leading additional evidence, dismissing their application under Section 311Cr.P.C. Both the above said criminal revision petitions are between the same parties and primarily on the overlapping issues, hence both the criminal revision petitions are proposed to be decided vide this common order.

(2.) FACTS first: Respondent No.1 -complainant filed a criminal complaint under Section 138/142 of the Negotiable Instruments Act (for short "NI, Act") and Section 420 of the Indian Penal Code (for short "IPC") against the petitioners. The case set up by the petitioners before the learned trial Court was that they had already paid the cheque amount and the complaint was liable to be dismissed. To substantiate this plea, the petitioners submitted their list of witnesses, deposited the requisite charges and diet money etc., for summoning the official witnesses who were bank officers/officials as they were supposed to prove, by referring to official record of the bank that the petitioners have already paid back the amount of Rs.7,65,000/ -, vide cheque No.644061 dated 28.04.1999 issued by the Society in favour of Kamal Sharma and he encashed the same way back in the year 1999. The petitioners did whatever they were required to do for procuring the attendance of official witnesses. It is the further pleaded case of the petitioners that the examination of the bank officials was necessary for proving the fact that Oriental Bank of Commerce, Rewari had issued bank certificate to the effect that cheque No.30335 dated 05.11.1996 pertains to Kamal Sharma, which was deposited by him in the Society from his account No.9274. The examination of other bank official of UCO Bank was necessary to prove the fact regarding deposit of cheque bearing No.644061 dated 28.04.1999 issued by the Society in favour of Kamal Sharma, which was also encashed by him, thereby completely absolving the petitioners from any liability, in this regard. It is also the pleaded case of the petitioners that the requisite charges had been deposited and the official witnesses had been duly served but they were not coming forward. During this period, when the petitioners were making all necessary efforts on their part to examine the official witnesses for the above said purpose, on the relevant date i.e. 09.11.2010, counsel for the petitioners before the learned trial Court was not available. The petitioners appeared and under a bona fide wrong impression, made a wrong statement before the Court that they want to close their evidence as no other witness was to be examined, whereas, as a matter of fact, the above said official witnesses from the banks were yet to be examined. This material fact was not in the knowledge of the petitioners when they appeared before the Court in person in the absence of their counsel on 09.11.2010. Thus, without referring to the judicial record available on the case file, learned trial Court vide impugned order dated 09.11.2010 fixed the case for arguments while adjourning the same to 16.11.2010. The Criminal Revision No.3194 of 2010 has been filed by the petitioners against the order dated 09.11.2010. When this case came up for motion hearing before this Court on 03.12.2010, notice of motion was issued and the learned trial Court was directed to adjourn the case beyond the date fixed by this Court. In the interregnum, the petitioners also moved an application before the learned trial Court under Section 311 Cr.P.C. They sought permission of the Court to examine above said two bank officers/officials by way of additional evidence, because the evidence of the petitioners was closed on the basis of their statement made inadvertently and under the wrong impression that the summoned witnesses have already been examined. Reply to this application of the petitioners was filed by the respondent -complainant. The learned trial Court dismissed the application of the petitioners vide order dated 25.11.2010. Feeling aggrieved against this order, the petitioners have filed the Criminal No.1 of 2011. That is how both the matters are interconnected and between the same parties, hence being decided vide this common order.

(3.) SO far as the facts are concerned, the same have been culled out from Criminal Revision No.1 of the 2011. Learned counsel for the petitioners would contend that the facts contained in para No.2 and 3 of their application dated 16.11.2010 (Annexure P -14) have not been denied by the respondent vide his reply dated 16.11.2010 (Annexure P -15).