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BOMBAY HIGH COURT - BENCH AT GOA
Manish Pitale, J
Mr. Rajendranath Ganesh Usgaonkar – Appellant
Versus
Deendayal Nagari Sakhari Pathsaunsthan Maryadit – Respondent
CRIMINAL REVISION APPLICATION NO. 43 OF 2019
For the Appellants/Petitioners: Mr. Deepak Gaonkar
For the Respondents: Mr. P. Karpe, Mr. G. Nagvenkar
Procedural irregularities in marking exhibits do not invalidate proceedings if no prejudice is demonstrated.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 294 - Failure to mark documents as exhibits - Proceedings before the Magistrate not vitiated as no prejudice demonstrated - Re-trial application dismissed. (Paras 6, 27)
(B) Judicial Procedure - Requirements for a valid conviction - The accused's failure to object to the admissibility of documents during trial substantiates the conviction despite procedural irregularities. (Para 26)
Facts of the case:
The applicant was convicted by the Court of Magistrate under Section 138 for issuing a cheque without sufficient funds following a loan agreement. The applicant's principal argument for re-trial was based on documents not being marked as exhibits during the original proceedings.
Findings of Court:
The courts upheld the conviction, ruling that the absence of prejudicial effect from the procedural error did not warrant re-trial, substantiating that the integrity of the conviction was maintained.
Issues: The court primarily addressed whether the failure to mark the documents as exhibits improperly influenced the proceedings against the applicant's rights.
Ratio Decidendi: The court maintained that failure to mark documents as exhibits, while technically an error, did not demonstrate a failure of justice nor invalidate the proceedings, especially given the applicant's active participation in cross-examination.
Result: Criminal Revision Application is dismissed.
| Table of Content |
|---|
| 1. conviction under section 138 of the negotiable instruments act. (Para 1 , 2 , 6) |
| 2. procedural challenges regarding document admissibility. (Para 10 , 11 , 12) |
| 3. no proof of prejudice resulting from procedural errors. (Para 16 , 26 , 27) |
ORDER
1. The revision-applicant is an accused convicted for offence under Section 138 of the Negotiable Instruments Act, 1881 , (the said Act). The conviction and sentence imposed upon the Applicant by the Court of Magistrate were confirmed by the District Court by dismissing his appeal.
2. The principal contention raised in the present revision application is that the proceedings before the Magistrate stood vitiated for the reason that the documents filed along with the complaint, upon which the Respondent no.1-(original complainant) placed reliance on, were never marked as exhibits. According to the Applicant, this was a fundamental flaw in the manner in which the proceeding was conducted before the Court of Magistrate and, on this sole ground, the impugned judgments and orders deserve to be set aside and the matter needs to be remanded for a re-trial.
3. The Respondent no.1, i.e. the original complainant, had filed a complaint under Section 138 of the aforesaid Act, before the Court of Magistrate against the Applicant stating that the ₹ Applicant had taken a loan of 1,00,000/- and that the same was to be repaid in 60 monthly installments. The loan account was opened and the amount was disbursed to the Applicant on 02.11.2015. On 26.04.2017, the outstanding balance towards ₹ the said loan account was 1,07,207/- and the Applicant voluntarily gave a cheque dated 19.05.2017 drawn on Canara Bank, Panaji Branch for the said amount.
4. According to Respondent no.1, the said cheque was returned by the Bank on the ground of "insufficiency of funds". Respondent no.1 issued notice to the Applicant and when the amount was not made good despite receipt of the notice, Respondent no.1 was constrained to file the aforesaid complaint on 05.07.2017 against the Applicant. The Respondent no.1 also filed documents along with the list of documents in the said complaint.
5. The proceedings in the complaint continued before the Court of Magistrate wherein, the Branch Manager of the Porvorim Branch of the Respondent no.1, filed an affidavit in evidence before the Court of Magistrate. Along with the affidavit, the said Branch Manager produced six documents and prayed that they be marked as exhibits. It is undisputed that the aforesaid witness on behalf of the Respondent no.1 was cross- examined by the Advocate representing the Applicant and that reference was also made to the said documents on which Respondent no.1 placed reliance. The said documentary evidence was not disputed on behalf of the Applicant and it is also admitted position that the Applicant neither examined himself nor any other witness in support of his defence. It is also an admitted position that during the course of the proceedings before the Court of Magistrate, although documents filed along with the affidavit in evidence of the witness for the Respondent no.1 were taken on record and they were referred to in the said affidavit as well as during the process of cross-examination on behalf of the Applicant, none of the documents were marked as exhibits.
6. The Court of Magistrate took into consideration the complaint, the documents as also the evidence, and cross- examination undertaken on behalf of the Applicant and found that Respondent no.1 had made out a case against the Applicant. Accordingly, by order dated 23.05.2018, the Court of Magistrate convicted the Applicant for offence punishable under Section 138 of the aforesaid Act and sentenced him till rising of the Court.
₹The Applicant was further directed to pay the amount of1,07,207/- to Respondent no.1 as compensation within one month and in default to undergo 15 days of simple imprisonment.
7. Aggrieved by the said order of conviction and sentence, the Applicant filed an ap
