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TMI Blog2018 (8) TMI 2020X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th February, 2014. Thereafter, the complainant preferred another application for additional documents by filing additional affidavit of evidence on 2nd August, 2014. The said applications were allowed by the trial Court on 1st November, 2014. The petitioner challenged the said orders in various courts and ultimately could not succeed in the said proceedings. It is also apparent in the meantime the examinationinchief of the complainant is also recorded partly in the case initiated under Section 420 of Indian Penal Code. The said examinationinchief was recorded on 5th July, 2014. Thus, it is evident that both the cases have proceeded separately and not as a joint trial. It is thereafter this application was preferred by the petitioner on 27th July, 2018 which was rejected by impugned order. It also appears that the case was expedited by the Hon'ble Supreme Court. In the case under Negotiable Instrument Act, if a fine is imposed it is to be adjusted to meet the legal enforceable liability. There cannot be such a requirement in the offence under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in the case under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 23rd January, 2014 disposed of the said petition directing the criminal case pending on the file of Court of the learned Judicial Magistrate, Bandra be transferred to the Court of learned Judicial Magistrate First Class, Pen for being tried by the said Court. iv) The Respondent No.2 filed his affidavit of examination in chief before the learned Magistrate. On 5th July, 2014 the documents were marked and exhibited and matter was adjourned for crossexamination. On the next date of hearing, Respondent No.2 filed an application for permission to file additional affidavit examinationinchief and further documents referred to in the said affidavit. The said application was opposed by the petitioner. The learned Magistrate by order dated 1st November, 2014 allowed the said application. The Respondent No.2 entered the witness box to depose in RCC No. 39 of 2014 in respect to the police case and the examinationinchief was conducted by the Assistant Public Prosecutor. The evidence was partly recorded and the same was differed till the next date. v) At the instance of Respondent No.2, learned APP made an application for bringing certain documents on record which were not part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the documents in the said case are common and if the petitioner is compelled to complete his crossexamination by leaving examination in chief in the other case incomplete, the same would result in grave prejudice to the petitioner accused as his defence will be disclosed and Respondent No.2 will take undue advantage of the same in his examinationinchief in RCC No. 39 of 2014. The impugned order is in contravention of the order dated 23rd January, 2014 passed by this Court. It is submitted that the learned Trial Judge has not dealt with the aspect that this Court had directed the case arising out of Section 420 of Indian Penal Code to be tried alongwith SCC No.589 of 2010. The learned Magistrate failed to appreciate that the transaction allegations and documents are the same and therefore if one case is tried before another case the same would result grave prejudice to the petitioner because his defence will be exposed and the complainant would get an opportunity to fill up gaps and lacuna in the other case. It is further submitted in accordance with Section 210 of Code of Criminal Procedure both the cases should be tried together. 4. Learned counsel appearing for Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both the criminal cases. On perusal of the observations made in paragraph 4 of order dated 23rd January, 2014 passed by this Court, it can be seen that this Court had observed that considering the facts and circumstances of the case, the nature of allegations made in the submissions, it would be appropriate that both these cases are tried by the same court so as to avoid conflicting decisions. It would be proper for the parties to lead evidence in the same court in respect of both the cases. On reading the said observations, it is crystal clear that the Court had transferred the police case to the Court of Judicial Magistrate First Class at Pen and direction was given in the circumstances that both the cases be tried in the same Court. The order does not indicate that there should be a joint trial of both the cases. The said order was passed on 23rd January, 2014 and it was never contended earlier that there has to be joint trial. It is also pertinent to note that the procedure contemplated for the trial of the complaint under Section 138 of the Negotiable Instruments Act which is summons triable case is different from that of the procedure contemplated for the trial of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y infirmity in the order passed by the learned Magistrate. The relief sought in the application on the grounds stipulated therein cannot be granted. In the decision relied upon by the learned counsel for the Respondent No.2 in the case of Sangitaben Patel (supra), it is observed by the Hon'ble Supreme Court that in the case under Negotiable Instruments Act there is a legal presumption that the cheque had been issued for discharging the liability and that presumption can be rebutted only by a person who draws the cheque. Such a requirement is not there in the offence under Section Indian Penal Code. In the case under Negotiable Instrument Act, if a fine is imposed it is to be adjusted to meet the legal enforceable liability. There cannot be such a requirement in the offence under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in the case under Indian Penal Code such a condition is not necessary. There may be overlapping of the facts in both the cases but the ingredients of the offences are entirely different. In the aforesaid circumstances, order passed by the learned Magistrate is not required to be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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