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2014 DIGILAW 2086 (RAJ)

S. E. Investments Ltd. v. Ratan Lal Regar

2014-12-11

GOPAL KRISHAN VYAS

body2014
JUDGMENT 1. - The instant Criminal Appeal has been filed by the appellant under Sections 378(3) and (4) of Criminal Procedure Code against the Order dated 4.6.2014 passed by the learned Additional Civil Judge (Junior Division) and Special Metropolitan Magistrate (Negotiable Instruments Act Cases) No. 9 Jodhpur Metropolitan, Jodhpur in Criminal Original Case No. 1012/2011 whereby the learned Trial Court acquitted the respondent for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short). 2. As per the facts of the case criminal complaint was filed by the appellant against the respondent Ratan Lal Regar under Section 138 of the NI Act in which the learned Trial Court framed charge against the accused-respondent for offence under Section 138 of the NI Act and upon affidavit of Shailendra Bhadoriya, the authorised representative of the appellant company an opportunity was granted for examination on the affidavit. In the complaint summons were issued to the respondent but he did not turn up in the Court and lastly the respondent accused surrendered before the Court on 12.9.2013. On that date, he was taken in custody and, thereafter, the learned Trial Court released the respondent on bail. On 8.10.2013 the accused respondent remained absent in the Court, therefore, his bail bonds were forfeited and arrest warrant was issued while initiating proceedings under Section 446 of Criminal Procedure Code by the learned Trial Court. The respondent was arrested in pursuance of the arrest warrant and produced before the Court on 8.11.2013 and again he was released on bail on furnishing personal bond of Rs. 20,000/- but unfortunately, the accused respondent did not appear before the Court on 13.1.2014, therefore, his bail bonds were again forfeited and arrest warrant was issued while initiating proceedings under Section 446 Criminal Procedure Code 3. In pursuance of the said arrest warrant, the accused respondent was arrested and set to the Judicial Custody and during the custody the complainant was directed to remain present before the Court for cross-examination upon the affidavit but on 22.4.2014 the complainant did not appear before the Court Thereafter, the matter was fixed for cross-examination on 1.5.2014. On that date, neither the Counsel for the complainant nor the complainant attended the Court for cross-examination. 4. The learned Trial Court adjourned the matter for 12.5.2015. On that date, neither the Counsel for the complainant nor the complainant attended the Court for cross-examination. 4. The learned Trial Court adjourned the matter for 12.5.2015. On that date also, the complainant did not turn up for cross-examination and the learned Trial Court fixed the next date for cross-examination as 17.5.2014 but on that date, again the complainant and his Counsel did not turn up for cross-examination, therefore, the learned Trial Court fixed the date for final hearing on 28.5.2014. On that date also, neither the complainant nor his Counsel remained present before the Court, therefore, the learned Trial Court fixed the date for final nearing on 4.6.2014. On that date, after hearing argument ex-parte, the learned Trial Court acquitted the accused-respondent from the charges levelled against him under Section 138 of the NI Act. 5. The instant Criminal Appeal has been filed by the appellant stating therein that order passed by the learned Trial Court acquitting the accused respondent for offence under Section 138 of the NI Act is illegal because on all dates of bearing the learned Counsel for the appellant-complainant remained present but only on some occasions, they did not turn up, but the learned Trial Court ignoring the fact fixed the dates and heard the matter finally and decide the same in favour of the respondent without considering the material available on record, therefore, the judgment impugned deserves to be quashed. 6. The learned Counsel for the appellant lastly argued that reasonable opportunity of hearing was to be given to the complainant-appellant but has not been given, therefore, the judgment impugned may be quashed and the matter may be remitted back to the learned Trial Court for cross-examination and to decide the case afresh. 7. Per contra, the learned Counsel appearing for the respondent vehemently argued that in pursuance of arrest warrant due to non-appearance by the respondent, the respondents was arrested and sent to the Judicial Custody on 4.2.2014 and he remained in custody for the period of 4 months and the learned Trial Court granted 4 opportunities to the appellant to remain present before the Court for the purpose of cross-examination but neither the Counsel for the complainant nor the complainant himself remained present, therefore, the learned Trial Court finally heard the matter and decided the same vide impugned judgment, therefore, this appeal filed by the complainant may be dismissed. 8. 8. After hearing the learned Counsel for the parties I have considered the facts stated in all the order-sheets annexed with the appeal, so also, considered the fact that accused respondent was appearing since 4.2.2014 but the complainant-appellant remained absent in the Court and did not turn up for cross-examination, therefore, obviously no option was left with the Court except to decide the case in his absence. I have examined the balance between the parties. In my opinion, when the accused was in judicial custody facing trail under Section 138 of the NI Act from last 4 months then obviously it was the duty of the complainant or his Counsel to remain present before the Court but they did not turn up and tried to delay the proceedings. Therefore, no error has been committed by the learned Trial Court in deciding the case in absence of Counsel for the complainant and complainant. 9. Inview of the above, I see no reason to interfere in the judgment impugned. Hence, this Criminal Appeal is hereby dismissed.Appeal Allowed. *******