TARUN KIRANA STORE (M/S.) Vs. DEVENDRA SHARMA

JUDGEMENT

(1.) - The complainant-petitioner has preferred this criminal misc. petition under Section 11 Criminal Procedure Code against the impugned order dated 21.9.2006 passed by the Additional Chief Judicial Magistrate No. 9, Jaipur City, Jaipur in Criminal Case No. 4264 of 2005 whereby the learned Magistrate dismissed the application filed on behalf of the petitioner under Section 11 Criminal Procedure Code.

(2.) The brief relevant facts for the disposal of this petition are that the petitioner filed a complaint for the offence under Section 11 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act") against the accused-non-petitioner stating therein that the non-petitioner purchased some goods from the complainant-petitioner for the purpose of marriage in his family and to ensure the payment of price of the goods purchased the non-petitioner issued a cheque dated 24.4.2004 for an amount of Rs. 30,000/-. It was also stated that the complainant submitted the disputed cheque in bank, it was dishonoured with this remark that sufficient funds are not available in the account. The complainant after serving legal notice filed complaint in the Trial Court. In support of complaint the complainant produced oral as well as documentary evidence, whereas the non-petitioner after his examination under Section 11 Criminal Procedure Code produced the Manager of the bank concerned as his defence witness. Thereafter, the petitioner submitted an application under Section 11 Criminal Procedure Code praying therein that the brother of non-petitioner Mr. Rajesh Sharma may be summoned as a witness. The learned Trial Court after hearing both the p ies dismissed the application filed on behalf of the petitioner by passing the impugned order. Feeling aggrieved the complainant-petitioner is before this Court by way of this petition.

(3.) Assailing the impugned order the learned counsel for the petitioner has submitted that the defence witness Bank Manager produced on behalf of the non-petitioner in his statement has stated that the cheque in dispute is of an account maintained by Mr. Rajesh Sharma, whereas that cheque was issued by the non-petitioner in lieu of payment of sale price of goods sold by the petitioner to the non-petitioner. It was also submitted that if Mr. Rajesh Sharma appears as a witness on behalf of the petitioner, he in his examination-in-chief would be asked whether the cheque in question bears the signature of non-petitioner or of Mr. Rajesh Sharma. It was also submitted that the cheque in dispute was dishonoured with this remark that in the bank account there are insufficient funds so as to honour it and not on the ground that it does not bear the signature of the person from whose account it has been issued. The learned counsel further submits that under Section 11 Criminal Procedure Code the Court should allow to summon a material witness so as to ensure that best evidence available is brought before the Court. In support of his submissions, the learned counsel for the petitioner relied upon Zahir Habibullah Sheikh & Anr, v. State of Gujarat & Ors., 2006 Cr.LR (SC) 346 .