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2009 DIGILAW 834 (CAL)

Ashok Bagla v. Premier Vinyl Flooring Ltd.

2009-11-25

AMIT TALUKDAR

body2009
Judgment : AMIT TALUKDAR, J. (1.) It was on 24.2.1998, the petitioner took out the petition under sections 138/141 of the Negotiable Instruments Act against the opposite parties. Thereafter during all these period the order-sheets reflect, the trial could not begin for the reason the accused No. 3 was not available. Plea was recorded on 11.4.2000. (2.) Since accused No. 3 who was covered with an order under section 205 of the Code of Criminal Procedure went unrepresented a warrant of arrest was issued by the learned trial Court on 80,10,2003 which hitherto has remained unexecuted. (3.) In this application the petitioner has prayed for expeditious direction for conclusion of the said long-run trial and also for splitting up of the case against the accused no.3, prayer in respect of which was turned down by the learned trial court on 18.12.2008 (4.) In view of the nature of the order proposed to be passed in this application, this Court is of the view that the same can be disposed of even at this stage without issuance of formal notice upon the opposite parties. (5.) As noticed, the complaint case was initiated way back on 24.2.1998. Since then more than a decade has elapsed but unfortunately the proceeding is still in the file adding another docket in the pending list of cases. A plain reading of the various order sheets shows that the learned trial court did not give much importance for splitting the trial and sought to resort to traditional method which not only caused the delay but also resulted in incalculable harm of the case of the complainant who has been pursuing his claim for justice for overall these period. (6.) At first this court would concentrate on the prayer in respect of splitting up in respect of accused No. 3, After applying its mind on the issue and the reference to the decisions made before the learned trial Court, it would be of the view that the application of same would not be appropriate in the given fact situation of the instant case. Keeping in view the track record of the absentee accused No. 3 for whose conduct trial could not be concluded for all these period, steps taken by the learned trial Court on the basis of the decision and refusing the prayer for splitting up was not appropriate. Keeping in view the track record of the absentee accused No. 3 for whose conduct trial could not be concluded for all these period, steps taken by the learned trial Court on the basis of the decision and refusing the prayer for splitting up was not appropriate. (7.) Even if in ordinary circumstance where it is found that after exhausting all possible avenues the accused is not made available before a court in connection with the trial, it is the ordinary rule of prudence that case against him is filed after the trial of the same being split up. Unfortunately, the learned trial Court did not adopt such a procedure and instead, sought to take refuge under the dictum of the decisions which was placed before him and that too, not having any square application on the given fact situation of the present case. This Court would, accordingly, set aside the order passed by the learned Magistrate on 18.12.2008. (8.) So far as the delay is concerned, the provision of section 143 of the Negotiable Instruments Act came in the statute sometime in 2003 although the complaint was initiated much prior to it, but since 2003 section 143 (3) of the Act has stood in its breach before the learned trial Court. The learned trial Court was completely oblivious of the statutory provision of sub-section (3) of Section 143 of the Negotiable Instruments Act and dragged the matter endlessly notwithstanding several earlier orders of this Court to conclude the trial expeditiously. (9.) Having an overall assessment of the situation, this Court is of the view that instead of calculating the errors it would be proper if the following procedure is adopted. (10.) The order dated 18.12.2008 is set aside, The case against the absconding accused would be filed for the present and the trial be split up. The learned Magistrate would endeavour to conclude the trial within 30th January, 2010 without fail. He will treat this order as binding and mandatory. This application is, thus, disposed of. Petition allowed.