Gowardhan Das vs State of Maharashtra and Another

C.L. Pangarkar, J.—Rule. Heard finally with consent of parties.

These two criminal applications are filed against the two orders passed by the Judicial Magistrate, First Class, Nagpur, on an application for return of the documents filed in Criminal Case instituted u/s 138 of Negotiable Instruments Act.

Applicant Gowardhan Das is an accused while Nandkumar is a complainant. It is alleged that applicant Gowardhan Das had issued two cheques bearing No. 682765 and 682766. Both the cheques were for sum of Rs. 1,50,000/-. Those cheques were issued by the present applicant. They were sent for collection to the bank. Those cheques were dishonoured. Non applicant No. 2 Nandlal therefore, filed two separate criminal cases being Criminal Case No. 4034/05 and 4035/05. When these applications were filed by Nandlal he had tendered those two cheques along with the memos of return issued by the bank. During the course of the trial i.e. after recording of the evidence of the witnesses was over it was revealed that wrong memos of return were filed in those cases i. e. the one which ought to have been filed in Cri. Case No. 4034/05 was filed in Cri. Case No. 4035/05 and the one which should have been filed in Cri. Case No. 4035/05 was filed in Cri. Case No. 4034/05. When this came to the notice of the Judge the complainant applied in both the cases for return of the two documents for being produced in other case. Applications were opposed by the accused. The learned Magistrate found that this was only due to inadvertence and no prejudice would be caused to the accused. He, therefore, returned both memos of the bank to the complainant for being filed in an appropriate criminal case. Being aggrieved by that order these two applications have been preferred.

I have heard the learned Counsel for the applicant and the non applicant. The learned Magistrate while passing an order has held that in the interest of justice and to avoid miscarriage of justice it is necessary to allow both the applications. He particularly relied on a decision in M/s. Dalmia Cement (Bharat) Ltd. Vs. M/s. Galaxy Traders and Agencies Ltd., . Learned Counsel submitted that even relying on this decision the Court could not have order the replacement of the memos issued by the bank. He submitted that these documents were already proved and wrong proof was offered and therefore it will cause a serious prejudice to the accused/applicant.

That apart, it appears from the contention raised in the petition that two memos were filed inadvertently in two different cases. Both cases were being heard by the same Judge simultaneously. The accused was also aware of the fact that the two memos have been filed on record but even the accused also did not notice until the evidence was recorded that wrong memos have been filed in both the cases.

The fact remains that in both the cases memos were filed. It appears that only through inadvertence they were filed in wrong cases. It is not that the complainant is filing the documents at the eleventh hour and is taking accused for surprise. It is also a fact that, both memos show that cheques were dishonoured. In any case therefore no prejudice, whatsoever, is going to be caused by replacement of the memos that were filed in wrong cases. Ultimately the Courts have to see that no injustice is caused to the parties. If the justice is to be done then in no case it can be said that the order passed by the learned Magistrate is wrong. On the other hand it must be said that the learned Magistrate in the interest of justice rightly passed an order returning the documents for being filed in an appropriate case. I, therefore, see no merit in the applications. Both applications are therefore, rejected.