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2012 DIGILAW 699 (RAJ)

Satish Kumar Lumba v. State of Rajasthan

2012-03-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant revision petition has been filed by the petitioner-complainant challenging the order dated 20.3.2008 passed by the learned Additional Sessions Judge No. 1, Jodhpur in Criminal Appeal No. 100 of 2004, whereby the learned Additional Sessions Judge whilst allowing the appeal filed by the respondent No. 2, set aside the judgment dated 17.3.2004 passed by the ACJM (Economic Offences), Jodhpur convicting the respondent No. 2 for the offence under Section 138 of the Neotiable Instruments Act. The appellate Court, by the impugned order, accepted the appeal filed by the respondent No. 2 and has remanded the matter back to the Trial Court for permitting the respondent No. 2 the right of further cross-examination of the complainant and also permitting him to summon certain other witnesses and documents by way of offence. 2. Learned counsel for the petitioner-complainant submits that before- the appellate Court, there was no prayer made on behalf of the accused that he desired to further cross-examine the complainant, thus, the learned appellate Court has committed grave error in accepting the appeal filed by the accused. He further argues that the accused himself closed the cross-examination of the complainant after subjecting him to certain questions and therefore, at a subsequent stage i.e., after his conviction, he could not have been permitted to say that he was deprived of an opportunity of cross-examination in the Trial Court. Thus, it is argued that the order of the Appellate Court amounts to abuse of the process of the Court and deserves to be quashed. 3. Learned counsel for the respondent No. 2 submits that during the course of the trial itself, the accused-respondent had prayed for being permitted to further cross-examine the complainant on 4.3.2004 but the said prayer was turned down without any justification. Therefore, he submits that the Appellate Court's judgment does not call for any interference. He further submits that the prayer for further cross-examination was made for the reason that the accused came across certain other documents, which were relevant and germane for providing an opportunity of proper defence to the accused and, therefore, the relief which has been granted by the appellate Court is justified. 4. In rejoinder, the learned counsel for the petitioner-complainant has submitted that the relief which has been granted by the appellate Court runs even beyond the prayer made by the accused-respondent in his application dated 4.3.2004. 5. 4. In rejoinder, the learned counsel for the petitioner-complainant has submitted that the relief which has been granted by the appellate Court runs even beyond the prayer made by the accused-respondent in his application dated 4.3.2004. 5. Having considered the arguments and having gone through the record of the case as also the impugned order, this Court is of the opinion that the directions given by the learned Additional Sessions Judge No. 1, Jodhpour in appeal to the extent of permitting the accused-respondent to further cross-examine the petitioner-complainant appears to be justified but the remaining directions for calling the additional witnesses, i.e., the Manager of the Bank, etc., cannot be said to be justified. 6. The upshot of the above discussion, is that the revision petition succeeds in part. The order dated 20.3.2008 passed by the learned Additional Sessions Judge No. 1, Jodhpur passed in appeal is maintained to the extent of permitting the accused respondent No. 2 to conduct further cross-examination of the petitioner-complainant but the remaining direction for summoning the additional witnesses, etc., cannot be said to be justified. The said directions are beyond the relief sought by the accused in his application filed before the Trial Court. The revision petition is disposed of in the terms stated above. The record of the case is directed to be sent back to the Trial Court forthwith. The Trial Court is directed to complete the proceedings of the case subsequent to the remand at the earliest and without being prejudiced by the observations made by the appellate Court.Revision Partly Allowed. *******