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Century Steel Traders v/s Polaris Steel Castings Pvt. Ltd. through its Directors

    Criminal Writ Petition No. 58 of 2016

    Decided On, 20 January 2016

    At, In the High Court of Bombay at Nagpur


    For the Petitioner: R.M. Sharma, Advocate. For the Respondent: M.D. Samel, Advocate.

Judgment Text

Oral Judgment:

1. Rule. Rule is made returnable forthwith. Learned Adv. Mr. M.D. Samel waives service for respondent sole. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Writ Petition is taken up for final hearing and disposed of by this Judgment and Order.

2. What is challenged in this petition is the order dated 22nd December, 2015 passed by learned Sixth Joint Civil Judge (Junior Division) & Judicial Magistrate First Class & Special Court No.5 trying cases under the Negotiable Instruments Act, Nagpur, below Exh.115 in Summary Criminal Case No.8250 of 2012, by which the learned Trial Judge declined to grant permission to the petitioner-complainant to file original Certificate issued under Bombay Shops & Establishments Act before the Court.

3. Mr. Samel, learned counsel for the respondent, supported the impugned order and vehemently argued that there is a clean and clearcut admission given in the cross-examination by the petitioner that he is not the proprietor of the Firm and in the wake of the said admission, the petitioner wanted to bring the document before the Court revealing a diametrically opposite stand which has rightly been disallowed by the Trial Judge in the first place, because the same would amount to curing the lacuna that has entered into the case, and secondly, there is no explanation, whatsoever, as to why the original document was not filed from 2012 when the case was filed. He then submitted that the respondent is entitled to take advantage of the admission made in the cross-examination and the admission being the best piece of evidence, the respondent cannot be disallowed from taking advantage of the law in his favour. He relied on certain decisions on that aspect which I have seen.

4. Counsel for the petitioner invited my attention to the averments in the complaint under Section 138 of the Negotiable Instruments Act, Evidence-on-Affidavit of the petitioner and so also the application that was filed for production of original document under the Bombay Shops & Establishments Act. He submitted that the petitioner has approached the Trial Judge before the delivery of the judgment, though after the arguments. But then, the law is well settled that even before the Judgment, such a course of action, if justified, can be allowed. He submitted that the documents, which were not filed at the appellate stage or thereafter have not been allowed by the courts; but that is not the case at hand, because the petitioner is seeking to file the original public document before the delivery of the judgment.

5. Mr. Samel, learned counsel for the respondent, made one more submission that the case being closed for the judgment, the court rightly did not allow the filing of document at that stage.

6. I have heard the learned counsel for the rival parties at length. I have perused the impugned order.

7. Indisputedly, the filing of Criminal Case under Section 138 of the Negotiable Instruments Act and to treat the same as a Criminal Case stricto sensu would be a misnomer. The remedy of filing a case under Section 138 of the Negotiable Instruments Act was brought into, with a view to expedite the payments to the business transactions and to remove the delay in getting payment in the business transactions. These proceedings are, therefore, stricto sensu not the criminal proceedings and, therefore, the law that the documents can be filed till the delivery of judgment has application. Admittedly, in the instant case, the original document is a public document issued under the Bombay Shops & Establishments Act, veracity of which can always be put to test by the Court as well as the respondent. But then, in the wake of the fact that there are pleadings in the complaint and evidence on affidavit and the document being of the nature of a public document and the fact that it is being sought to be filed before the Trial Court itself would be enough to allow the presentation of document before the Court. The submission that the admission given by the petitioner cannot be utilized does not appeal to me, because this Court reserves liberty in favour of respondent to make arguments as to the admission and the alleged contrary stand on document regarding proprietorship of the firm. In what way the admission is required to be appreciated at the time of hearing the arguments and writing the judgment is a matter which must be left to the Trial Judge and it would not be proper for this Court to prejudge the issue. The effect of admission etc., can well be ascertained by the Trial Judge. But then to shut out the complainant in not allowing to file the original document would be doing injustice to him.

It is a different matter if the document itself is not genuine. But then that can always be proved/disproved before the Trial Judge. The judgments cited before me on facts are distinguishable. The decision of this Court in the case of Anil Govindrao Chaudhari Vs. M/s. Taori Marketing (Criminal Application (APL) No.104 of 2013, decided on 6th January, 2015 (Coram S.B. Shukre, J.)), particularly para 13 thereof, is relevant. I, therefore, find that the Trial Judge should have exercised judicial discretion in allowing production of original document rather than shutting the door at the stage of the trial or even at the stage of judgment. The ultimate aim is to do justice between the parties and not to thwart it. In that view of the matter, I think, the following order should subserve the interest of justice:-


(a) Criminal Writ Petition No.58 of 2016 is allowed.

(b) The impugned order dated 22nd December, 2015, passed by learned Sixth Joint Civil Judge (Junior Division) & Judicial Magistrate First Class & Special Court No.5 trying cases under the Negotiable Instruments Act, Nagpur, below Exh.115 in Summary Criminal Case No.8250 of 2012 is quashed and set aside and the application (Exh.115) is allowed.

(c) The petitioner is allowed to file the original document on recor

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d and thereafter liberty is granted to both sides to lead such evidence as is necessary, strictly restricted to the said document. (d) Petitioner shall pay costs in the sum of Rs.10,000-00 (rupees ten thousand only) to respondent by way of compensation for procrastinating the trial, as a pre-condition. (e) Liberty is reserved in favour of the respondent to make submissions as to the effect of the admission in the cross-examination - qua the original document which shall obviously be judged by the Trial Judge on its own merits. (f) The trial shall be completed within four weeks. (g) Parties to appear before Trial Court today.