9911796707
TMI Blog2003 (11) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner for the purpose of presentation in bank. The muddamal articles about which the controversy has reached this Court are a number of cheques recovered pursuant to the complaint dated 4.2.2003 of the respondent No. 2 which was registered in DCB Police Station, Vadodara as No.I-8 of 2003. 3. The peculiar facts of the case are such that, according to the petitioner, the accused in the aforesaid complaint, a sum of Rs.9,80,000/- was advanced to the respondent No. 2, the complainant, in consideration whereof the respondent No. 2 had given 48 cheques of Rs.20,000/- each and the respondent had also executed a notarised letter of undertaking dated 30.8.2002 assuring the petitioner that he may recover the amount due by encashing one of those cheques every month. This simple-looking monetary transaction of loan and recovery thereof by 48 post-dated cheques ran into complications when the petitioner started presenting such cheques and they started bouncing with the memos of the bank stating Returned unpaid for reason-funds insufficient . It is the case of the petitioner that the petitioner issued notice dated 1.2.2003 regarding return of the cheques and the respondent filed the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f evidence which cannot be allowed to be tampered or given to the accused person against whom, by now, chargesheet was also filed. He, therefore, supported the impugned order and submitted that if any modifications or special directions were required, they can now be issued by the learned Judicial Magistrate, First Class after hearing the parties upon remand of the matter by the impugned order. 5. It is clear from the record that there has been some monetary transactions between the contesting parties and that the cheques and the undertaking executed in presence of a Notary have been delivered to and found from the possession of the petitioner. The alleged offences involving these cheques are yet to be proved in any court of law. There is a legal presumption under section 139 of the NI Act that, unless the contrary is proved, the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. Under the provisions of section 46 of the NI Act, the making, acceptance or indorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive. Under section 72 of the NI Act, subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. 5.3 After production of any property before any Criminal Court during any inquiry or trial, the provisions of section 451 of the Cr.P.C. would apply and they read as under: Order for custody and disposal of property pending trial in certain cases. S. 451 :When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed like the property subject to speedy and natural decay since cheques may lose their efficacy after the stipulated time and, whether the offences alleged to have been committed in respect thereof are proved or not, they might turn into pieces of paper worth nothing. Therefore, the question of custody of such cheques cannot be put off till the end of trial. 6. In the facts of the present case, there is no dispute that the cheques were delivered by the respondent to the petitioner, though under the alleged pressure or coercion, and they were held by the respondent at the time of recovery, during the course of investigation, as muddamal articles. The purpose of their being pieces of evidence during the trial can be served by retaining copies thereof and making proper panchnama, but their retention with the court can put the petitioner to undue hardships if he is exonerated at the end of the trial. On the other hand, if such cheques are presented for encashment and are not realized and criminal case in that regard come to be filed, the presumptions and defences as discussed hereinabove would be available to the parties and, therefore, it cannot be said that a particular party would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
