D.N.Patel, J. - (1.)The present application has been preferred against the order dated 12th July, 2006 in Criminal Revision Application No. 268 of 2006 passed by the learned Additional City Sessions Judge, Court No.1.2, Ahmedabad, whereby the Revision Application preferred by the respondent No.3 has been partly allowed and the order of accepting oral evidence at exh. 13 and order exhibiting, documents at exh. 17, passed by the learned Metropolitan Magistrate, Court No. 22, Ahmedabad in criminal case No.60 of 2005 passed on 20th May, 2006 has been quashed and set aside. By the impugned order, the City Sessions Court remanded the matter and the trial court has been directed to decide whether the exhibited documents at exh. 17 should be exhibited or not after the cross-examination is over. In the operation portion of the order, however, the learned Additional City Sessions Judge has also set aside order with regard to exh. 13, namely, that of, taking affidavit on record.
(2.)I have heard the learned advocate for the applicant who has mainly submitted that in view of the new provisions inserted as sections 143 to 147 of the Negotiable Instruments Act, 1881, especially in view of section 145 of the Act of 1881, on the basis of the affidavit, examination-in-chief can be given. In the present case, the complaint was given under Negotiable Instruments Act, 1881 in the year 2001 for dishonour of four cheques for the total sum of about Rs.1,22,00368/-. The affidavit was tendered to the court on 9th December, 2005 as evidence-in-chief below exh.13 wherein documents presented were referred and relied upon and therefore, all the documents presented by the original complainant- present applicant ought to have been exhibited. An application exh. 15 was given by respondent No. 3 on 19th December, 2005, by which objections were raised, wherein it was pointed out that insertion of sections 143 to 147 in the Act of 1881 have been brought into effect from 6th February, 2003 and therefore, these provisions of sections 143 to 147 of the Act of 1881 are not applicable to the present complaint which is filed in the year 2001. Thereafter, an application was given vide exh.17 by the present applicant on 13th March, 2006 for giving exhibit numbers to the documents which are, referred to and relied upon, in the affidavit, i.e. Evidence-in-chief. Therefore, an order was passed on 20th May, 2006 by the learned Metropolitan Magistrate, court No.22, whereby the application exh. 17 was allowed and this is how the documents were exhibited by the trial court. It is also submitted by the learned advocate for the applicant that insertion of sections 143 to 147 in the Act of 1881 is nothing but amendments so far as procedural aspect is concerned, they are applicable to all the complaints which are pending for adjudications and decisions. The learned advocate has also relied upon a decision of the High Court of Bombay in the case of INDRAPRASTHA HOLDINGS LTD. V/S. VIJAY SHAH REPORTED IN 2006 NOC,228 (BOMBAY) and submitted that on the basis of the said judgment, the provisions of section 145 of the Act of 1881 are applicable to the pending criminal complaints which were filed prior to 6th February, 2003 and therefore, the decision given by the learned Metropolitan Magistrate was true and correct. However, against the said order, Criminal Revision Application No. 268 of 2006 was preferred by respondent No. 3 (original accused) and the learned Additional City Sessions Judge, Court No.12, Ahmedabad, vide order dated 12th July, 2006 has quashed and set aside the order passed by the learned Metropolitan Magistrate, Court No.22, Ahmedabad and remanded the case for a fresh decision to be taken whether exhs. 13 and 17 should be exhibited or not after cross-examination is over. It is also submitted by the learned advocate for the applicant that the Sessions Judge has not properly appreciated the fact that inserted sections 143 to 145 are applicable even to the pending criminal complaints which are yet not finally decided. The amendment is procedural in nature and once the documents are already exhibited by the order passed by the trial court, the Criminal Revision Application ought not to have been allowed by the City Sessions Court, Ahmedabad. The learned advocate for the applicant also submitted that the respondent No. 3 is always resorting to delay tactics so that criminal complaints filed by the present applicant do not proceed ahead and finally adjudicated. Several times, such types of applications have been given and several Revision Applications have been preferred, one by one. Thus, from the year 2001, the complaint has not been decided. There are other criminal complaints against respondent Nos. 2,3 and 4 for dishonour of several cheques. The total amount in all the complaints is more than Rs. 2 crores. Number of cheques have been dishonoured which were given by respondent Nos. 2, 3 and 4. Even quashing petition preferred under section 482 of the Code of Criminal Procedure before this Court has been dismissed with costs. Thus, this Court has awarded costs to the applicant in a quashing matter filed by the respondent-accused. One of such judgments between the same parties is reported in XLIV(l) GLR, 18. Thus, several attempts have been made by the respondents so that criminal complaints filed by the applicant may not be decided finally by the trial court. In view of these facts, the order passed by the learned Additional City Sessions Judge, deserves to be quashed and set aside.
(3.)Though respondent Nos. 2,3 and 4 are served, nobody appears on their behalf. Affidavit of service of notice has also been filed. Rule was issued on 26th July, 2006 making it returnable on 7th August, 2006. Thereafter, the matter was listed on board or 8th August, 2006. As nobody had appeared on behalf of respondent Nos. 2 to 4, it was again adjourned to 14th August, 2006 i.e. Today. Today, when the mater is called out, nobody appears for respondent Nos. 2 to 4. Therefore, I have heard the learned advocate for the applicant as well as learned Additional Public Prosecutor for the respondent No.1 State.