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CR.RA/638/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 638 of 2010
=========================================================
PROPRIETOR
OF GULZAR TRADERS, VAHARA GULAMMOHAMMAD ADAMBHAI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
IM PANDYA WITH MR RITESH B DAVE
for
Applicant(s) : 1,
MS
CM SHAH, APP
for Respondent(s) : 1,
MR PRAMTHESH DAVE WITH MR YUSUFKHAN
PATHAN for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 11/04/2011
ORAL
ORDER
Heard
learned advocate, Mr.I.M.Pandya with Mr.R.B.Dave for the applicant,
learned APP, Ms.C.M.Shah for the respondent No.1 and learned
advocate, Mr.Pramthesh Dave with Mr.Yusufkhan Pathan for the
respondent No.2.
Applicant
is original accused against whom respondent No.2-original
complainant filed complaint being Criminal Case No.1915 of 1999 for
the offence punishable under Sec.138 of the NI Act. At the end of
trial, learned J.M.F.C., Savli convicted the applicant awarding SI
for 12 months with a fine of Rs.5,000/- and also awarding
compensation of Rs.540/-. Against the said order, appeal being
Criminal Appeal No.41 of 2007 was filed before the learned Session
Judge, Vadodara. After hearing learned advocates for the parties,
matter was remanded for retrial. Said order is challenged in this
revision.
This
Court has gone through the impugned order passed by the appellate
court. Para 15 of the order reads as under:
“Sec.59
of Indian Evidence Act provides-Proof of facts by oral evidence. All
facts except the contents of documents or electronic records may be
proved by oral evidence. In view of Sec.61 of this Act, the
respondent-original complainant can prove contents of documents by
way of producing primary or in certain circumstances secondary
evidence. On perusal of proceedings (Rojnama), it does not become
clear that such original/secondary evidence has been produced by the
complainant. Such original documents are lying scattered in the
bunch of papers which are not marked as exhibit. Neither it reflects
from examination-in-chief, cross-examination of complainant or
witnesses nor it reveals from proceedings of this case. Although
such documents are mentioned in the impugned judgment as proved
documents. Such embarrassing situation might have arisen due to the
fact that complainant might have not followed procedure regarding
production and proof of documents. Any how these old documents came
on record in which manner such documents presumed as proved
documents. It does not become clear from R & P or from impugned
judgment.”
It
is observed by the trial court that certain documents are not
exhibited and it is neither reflected from examination-in-chief and
cross-examination of the complainant or witnesses nor revealed from
the proceedings of the case. In view of the above, the learned
Appellate Court has rightly remanded the matter for retrial. No
illegality or pervasiveness is found in the impugned order. In view
of the above, this revision is dismissed. Notice is discharged.
Trial
Court is directed to dispose of the case expeditiously preferably
within three months from the date of receipt of copy of this order.
Office
is directed to send the record and proceedings forthwith to the
trial court.
(M.D.SHAH,J.)
radhan
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