M.Cr.C. No. 9070/2008
6/05/2010:
Shri Ashok Lalwani, Advocate for the applicant.
Shri Imtiyaz Hussain, Advocate for the respondent
no.1/complainant.
Shri Arvind Singh, Panel Lawyer for the State.
Applicant/accused has filed this petition u/s 482 of Cr.P.C
against the order dated 8/09/2008 passed by VIIIth Additional
Sessions Judge, Bhopal in criminal revision no. 269/08 confirming
the order dated 6/05/2008 passed by JMFC, Bhopal in criminal
case no. 6071/07 whereby the trial Court has refused the
permission to summon District Mining Officer as defence witness.
Respondent no.1/complainant has filed a criminal complaint
u/s 138 of the Negotiable Instruments Act in respect of the cheque
dated 30/04/2007 of State Bank of India, Chola Road, Bhopal
alleged to have been given by the applicant to respondent in
connection with purchase of stone crusher for the price of Rs. 12
lacs in part payment. When the case was fixed for defence
evidence on 1/04/2008, the accused has moved an application
(Annexure A-8) for summoning the District Mining Officer,
Bhopal as witness u/s 254 of Cr.P.C because by a notice State has
demanded Rs. 1,41,000/- as dues regarding this crusher whereas
respondent has admitted in the purchase agreement that no dues are
pending and further he will be liable to pay all dues of this crusher
during his ownership.
The application for summoning the District Mining Officer
was rejected by JMFC, Bhopal vide order dated 6/05/2008. The
applicant has filed the revision against the said order wherein the
prayer of the applicant to summon Mining Officer was rejected and
revisional court has confirmed the order of learned trial Court in
the revision. The applicant has filed the petition u/s 482 of the
Cr.P.C alleging that the order of learned trial Court declining the
prayer for calling the District Mining Officer is unwarranted by the
law and as such, the impugned order passed by both the courts
below should be set aside and opportunity should be provided to
applicant to examine the District Mining Officer as defence
witness.
Learned counsel for the applicant Shri Ashok Lalwani has
submitted that arrears regarding dues of State Government can be
proved by Mining Officer. Learned counsel further submitted that
in case u/s 138 of the Negotiable Instruments Act,
complainant/respondent must prove that cheque was drawn by the
accused for payment of any amount of money to complainant for
the discharge of whole or in part of any debt or any other liability
and accordingly, Mining Officer is a proper person who can prove
that respondent/complainant has to deposit dues in treasury,
applicant is willing to pay remaining amount to respondent.
In view of the fact that applicant is not challenging the fact
that impugned cheque was signed and delivered to the respondent
regarding sale of the stone crusher, both the courts below have not
committed any mistake in rejecting the prayer of the applicant to
call District Mining Officer as a witness u/s 254 of Cr.P.C.
In Krishnan v. Krishnaveni (1997) 4 SCC 241, Apex Court
explained the scope and power of the High Court under Section
482 of the Code. The question before the Court was if in view of
the bar of second revision under sub-section (3) of Section 397 of
the Code was prohibited, inherent power of the High Court is still
available under Section 482 of the Code. The Apex Court said as
under :
“Ordinarily, when revision has been barred
by Section 397 (3) of the Code, a person –
accused/complainant – cannot be allowed to
take recourse to the revision to the High
Court under Section 397 (1) or under
inherent powers of the High Court under
Section 482 of the Code since it may amount
to circumvention of the provisions of
Section 397 (3) or Section 397 (2) of the
Code. It is seen that the High Court has suo
motu power under Section 401 and
continuous supervisory jurisdiction under
Section 483 of the Code. So, when the High
Court on examination of the record finds
that there is grave miscarriage of justice or
abuse of the process of the courts or the
required statutory procedure has not been
complied with or there is failure of justice or
order passed or sentence imposed by the
Magistrate requires correction, it is but the
duty of the High Court to have it corrected at
the inception lest grave miscarriage of
justice would ensue. It is, therefore, to meet
the ends of justice or to prevent abuse of the
process that the High Court is preserved
with inherent power and would be justified,
under such circumstances, to exercise the
inherent power and in an appropriate case
even revisional power under Section 397 (1)
read with Section 401 of the Code. As stated
earlier, it may be exercised sparingly so as to
avoid needless multiplicity of procedure,
unnecessary delay in trial and protraction of
proceedings. The object of criminal trial is
to render public justice, to punish the
criminal and to see that the trial is concluded
expeditiously before the memory of the
witness fades out. The recent trend is to
delay the trial and threaten the witness or to
win over the witness by promise of
inducement. These malpractices need to be
curbed and public justice can be ensured
only when trial is conducted expeditiously.”
No reason exist whatsoever, to doubt the correctness of the
order of the Court of revision by which the impugned order of the
trial Court was confirmed.
It is well settled that the inherent power are exercised for the
limited purpose very sparingly where there is an apparent
miscarriage of justice. Further, the second revision is barred under
Section 397 (3) of the Cr.P.C and the power of Section 482 Cr.P.C
is not exercised to circumvent the bar of second revision under
Section 397 (3) of the Cr.P.C as held in Madhu Limaye Vs. State
of Maharashtra, AIR 1978 SC 47 .
On facts and in the circumstances, no case is made out for
exercising of jurisdiction u/s 482 of the Cr.P.C. Consequently, this
petition fails and is hereby dismissed. Trial Court is directed to
disposed of case (criminal case no. 6071/07) as expeditiously as
possible within four months.
Certified copy as per rules.
(S.C. Sinho)
Judge
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