M.S. Shoes East Limited vs Modella Knitwear Limited

S.C. Malte, J.—This revision is made u/s 401 of the Code of Criminal procedure for a prayer that the application u/s 340 Code of Criminal Procedure. filed in the trial Court should be disposed of before the recording of prosecution evidence. The proceedings in the trial Court are u/s 138 of the Negotiable Instruments Act on the allegations that a cheque for Rs. 50,97,330/ - bounced. The Respondent-complainant, therefore, filed a complaint after following the procedure u/s 138 of the Negotiable Instruments Act. When the matter was pending before the trial Court, one petition u/s 482 Code of Criminal Procedure. was filed in this Court. That petition came to be disposed of by an order dated 8.4.1997 passed by Hon''ble Mr. Justice V.S. Aggarwal. In the concluding part of the order, his Lordship observed that the Petitioner would be entitled to raise his contentions in the trial Court. The personal presence of the accused was also exempted. The matter then came up before the trial Court.

In the context of these developments, it may be further mentioned that the Petitioner/accused have come forward with a contention that the liability of the said cheque has already been discharged as per the receipt (Annexure R-2). On receiving that receipt in the trial Court, the complainant filed an application and moved the Court to take action u/s 340 Code of Criminal Procedure. on the allegation that the said receipt was a forged document. In the set of these events, the accused/Petitioner moved an application before the trial Court that the said application u/s 340 Code of Criminal Procedure. should be disposed of before the recording of evidence of the prosecution. That application was fixed for reply on 11.8.1997. It may be noted here that prior to that on 8.8.1997, the Petitioner has filed the present petition and sought the stay of the proceedings in the trial Court. This Court by order dated 11.8.1997 stayed the proceedings in the trial Court pending the hearing of this petition. This aspect deserves to be considered in the background of one more attempt by the Petitioner to stall the progress of the case in the trial Court. The present Petitioner had filed one more Criminal Revision No. 518 of 1997 in this Court whereby the exemption of some of the accused in the trial Court was sought. While disposing of that application my learned sister Hon''ble Mrs. Justice Dr. Sarojnei Saksena passed the order. The relevant operative part of that order is as follows:

Considering the rival contention and the above facts Pawan Sachdeva is granted exemption from personal appearance on the condition that on any date when complainants witnesses are present but are not cross-examined at the instance of the accused this concession granted to Pawan Sachdeva shall stand cancelled automatically, trial Court is also directed to conclude the trial expeditiously. Order be conveyed to the trial Court.

It, therefore, clearly appears that this Court had already directed for expeditious trial of the case. In the background of all these events, now the argument submitted on behalf of the Petitioner is to be considered. The counsel for the Petitioner vehemently argued that since the receipt which shows the discharge of the liability against the cheque in question, the decision on the application u/s 340 Code of Criminal Procedure. will set at rest the whole controversy. According to him, during the enquiry u/s 340 Code of Criminal Procedure. the trial Court would be in a position to ascertain whether there is enough material to proceed against the persons for the offence covered u/s 340 Code of Criminal Procedure. It was, therefore, submitted that in the interest of justice the recording of evidence in the trial Court should be postponed till the decision on the application u/s 340 Code of Criminal Procedure. The counsel for the Respondents, on the other hand, invited the Court''s attention to the repeated efforts made by the Petitioner to protract the trial. It was further submitted that the question of discharge of liability under the cheque is a matter of defence, and the question of genuineness or otherwise of the receipt on which the accused propose to rely, is a matter to be concluded later on when they would be called upon to enter on defence.

The provisions of Section 340 Code of Criminal Procedure. contemplate that an enquiry should be made by the Court in order to record a finding as to whether it appears that an offence in relation to the proceeding in that Court or in respect of the document produced or given in evidence has been committed in respect of which the Court should take cognizance and take further steps. Obviously, therefore, in a proceeding u/s 340 Code of Criminal Procedure., the only point for consideration would be whether there is a prima facie material to proceed against the person concerned. In that enquiry the Court is required to record findings to the effect that there is sufficient material to proceed against him. That is only a prima facie opinion expressed for the purposes of making up its mind to proceed further. The next step would be to make a complaint in writing and send it to the Magistrate having jurisdiction. In that event, he is also expected to take sufficient security for the appearance of the accused before such Magistrate. Obviously, therefore, even during the enquiry u/s 340 Code of Criminal Procedure. the question of genuineness or otherwise of the document in question would not be finally adjudicated. Therefore, in this case it is not necessary to stall the recording of the evidence of the complainant. Moreover, in the course of evidence led by the prosecution, it would be always open to the accused to confront the prosecution witnesses with the material in their possession and the accused would be also entitled to lead defence evidence, if they chose to do so. In the course of that, the accused would be in a position to lead evidence to substantiate the defence that the liability under the cheque has been discharged as per receipt. On the basis of that evidence led before the trial Court, and on the basis of enquiry that may be u/s 340 Code of Criminal Procedure. the Magistrate concerned would be in a position to form an opinion as to whether the matter in respect of the document in question should be taken to the appropriate Court for final adjudication regarding the fact of forgery or otherwise, and the responsibility of the forgery.

I, therefore, find no substance in this revision. It is dismissed. Further it is directed to the trial Court to expedite the hearing of the case. Since examination-in-chief of two of the prosecution witnesses has already been recorded, and they are to be cross-examined, the trial Court is directed to follow the provisions of Section 309 Code of Criminal Procedure. while dealing with this matter, and as directed by this Court earlier. The trial shall be concluded expeditiously, and, preferably, before the end of November, 1997. Dasti.