Mangal Das vs State of U.P. and Others

Vinod Prasad, J.—Heard Sri S.K. Chaturvedi learned Counsel in support of this writ petition, Sri H.C. Yadav learned Counsel representing the Respondent No. 2 and learned A.G.A.

Challenge in this writ petition by the Petitioner is to the order dated 3.10.2007 passed by Additional Chief Judicial Magistrate, court No. 6, Jhansi, in Case No. 3046 of 2007 Mahesh Chandra v. Mangal Das u/s 138 Negotiable Instruments Act, Police Station Prem Nagar, District Jhansi. By the impugned order, at the stage of final arguments, trial Magistrate has taken the judgment dated 23.8.2007 on record but has refused to consider it in evidence.

Challenge to the impugned order by the Petitioner in Criminal Revision No. 84 of 2007 Mangal Das v. State of U.P. and Ors. before Sessions Judge, Jhansi, was also repelled as Sessions Judge vide its impugned order dated 6.10.2007 confirmed the order of the trial Magistrate. Hence this writ petition challenging both the impugned orders.

Perusal of the impugned order dated 3.10.2007 indicates that accused person is being prosecuted u/s 138 Negotiable Instruments Act. In trial, on 5.6.2006, accused closed his evidence by noting on the order sheet that he does not want to lead defence evidence. On the basis of such a noting, Additional Chief Judicial Magistrate, court No. 7, Jhansi, closed defence evidence and fixed the case for final arguments. Subsequently, on 31.5.2006, accused filed an application that he wants to bring on record copy of a plaint.

After hearing the complainant and accused, A.C.J.M. court No. 7, rejected that prayer of the accused which was made at the stage of final argument vide order dated 12.2.2007. It was specifically mentioned in that order that the accused had closed his evidence voluntarily by writing on the order sheet, therefore, under provisions of Section 115 of Evidence Act, law of estoppel will apply in his case and, therefore, opportunity of his defence cannot be reopened.

Feeling aggrieved by the aforesaid order of rejection dated 12.2.2007, Petitioner accused preferred Criminal Revision No. 20 of 2007. At the stage of admission, Sessions Judge, Jhansi, dismissed the revision of the Petitioner accused vide order dated 15.3.2007.

After receiving back File from lower revisional court, 3.10.2007 was fixed for final augments. On the said date, an application was filed for bringing on record the aforesaid judgment dated 23.8.2007. Learned A.C.J.M. by a detailed order, although took on record said judgment but observed that it will not be considered in evidence. As stated above, revision against the said order too was dismissed by lower revisional court.

I have perused the impugned orders and heard learned Counsel for both the sides.

Learned Counsel for the Petitioner submitted that the said judgment was admissible u/s 40 of Evidence Act, therefore, it should have been read in evidence.

The said argument raised by learned Counsel for the Petitioner, ultimately was withdrawn by him stating that Section 40 of Evidence Act, will not apply at all. He, therefore, submitted that Section 43 of Evidence Act may be taken into consideration for the said purpose. After reading Section 43 of Evidence Act, learned Counsel for the Petitioner again submitted that the said section also does not apply on the facts of the present case.

Contention of learned Counsel for the Petitioner since has been found to be not sustainable by him, the writ petition being bereft of merits, is hereby dismissed. Interim order dated 5.11.2007 stands vacated.

Since the present case is u/s 138 Negotiable Instruments Act, and since there has been a direction by Hon''ble Apex Court to conclude trials under aforesaid offences expeditiously, I direct the Magistrate to take up the case and conclude it positively within a period of two months from the date of production of a copy of this order before him after noticing both the sides.