- (1.) 3/14.5.2012 Heard learned counsel for the petitioner and learned counsel for the State.
(2.) THE petitioner has challenged the order dated 4.7.2011 passed by Sri Satyapal, learned Judicial Magistrate, 1st Class, Hazaribagh, in G.R. No.2065 of 1999 / T.R. No.205 of 2011, whereby the application filed by the petitioner for recalling the earlier order dated 8.5.2006 passed by the Court below, was rejected by the Trial Court. It appears from the impugned order that the petitioner is facing the trial in connection with Patratu (Bhurkunda) P.S. Case No.218 of 1999, corresponding to G.R. No.2065 of 1999 for the offence under Section 409/467/468/471/419/420 of the IPC, in the Court below on the allegation of defalcation of Rs.35,04,563/- of the Central Cooperative Bank, Bhurkunda Branch. In the said trial, the evidence of the prosecution was going on, when the application was filed by the prosecution for calling certain documents, which were of ledger of S.B. Account, Current Bank Account, Voucher and Scroll etc., for proving the same in trial. The said application was filed by the prosecution in the Court below in the year 2006 itself and the same was allowed by order dated 8.5.2006 and those documents were called for from the concerned bank. It appears from the order dated 8.5.2006, which has been brought on record as Annexure - 3, that the said order was passed in presence of the petitioner, who had filed his hazari in the Court below. It appears that the said order was not challenged by the petitioner and after a lapse of about three years, i.e., on 28.5.2009, the application was filed in the Court below for recalling the order dated 8.5.2006. The Court below has rejected the application stating that it had no power to review the order and also stating that the documents were necessary for just decision in the case. It also appears from the impugned order that though the case of the petitioner in the Court below was that the documents called for were neither the part of the case diary nor they were mentioned in the report of the Auditor, but it finds mentioned in the impugned order that the photostat copies of the said documents available with the case diary.
(3.) LEARNED counsel for the petitioner has submitted that the impugned order dated 4.7.2011 passed by the Court below is absolutely illegal in as much as, the documents mentioned in the impugned order were not the part of the case diary and taking those documents in the evidence shall vitally prejudice the case of the petitioner. LEARNED counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. From perusal of the record itself, it is apparent that the Trial Court had passed the order on 8.5.2006 itself calling those documents, that too, in presence of the petitioner, but the same was never challenged by the petitioner. It appears that the application for recalling the said order was filed in the Court below on 28.5.2009 after much delay and the Court below has rightly rejected the application stating that it had no power to review the earlier order. It further appears that though the case of the petitioner is that the documents, called for, were not the part of the case diary and they were not taken into consideration by the Auditor of the Bank, but it is apparent from the impugned order itself that those documents were available with the case diary and they were necessary for the just decision in the case.;