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2014 DIGILAW 61 (HP)

Surinder Kumar Negi v. Radha Krishan Negi

2014-01-09

RAJIV SHARMA

body2014
JUDGMENT : - Rajiv Sharma, Judge Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. In all these petitions, the petitioner has prayed for quashing the orders dated 26.9.2013 rendered by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Cr. Rev. Nos. 12-K/10 of 2013, 13-K/10 of 2013, 14-K/10 of 2013 and 15-K/10 of 2013 and orders dated 10.9.2013 rendered by the learned Chief Judicial Magistrate, Kinnaur in complaint case Nos. 120/3 of 2009, 13/3 of 2010, 119/3 of 2009 and 88/3 of 2010. However, in order to maintain clarity, facts of Cr.MMO No.4094/2013 have been taken into consideration. 2. The complainant, Rajinder Singh, (hereinafter referred to as the “complainant” for the sake of convenience) filed a complaint against the petitioner, Surender Kumar (hereinafter referred to as the “accused” for the sake of convenience) under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. It is averred in the complaint that the accused is an apple contractor and used to come in every apple season in village Brelangi to purchase apples. He was in dire need of money. He had taken loan of Rs.1,13,000/- from the complainant in the month of September 2009 at Reckong Peo. He had promised to repay the amount on or before 20.11.2009. However, the accused issued a cheque bearing No.011809 dated 20.11.2009 amounting to Rs.1,13,000/- drawn at Bank of India, Branch at Shimla, H.P.. The respondent presented the cheque to the Bank of India through Punjab National Bank, Branch at Reckong Peo for collection. However, the same was returned unpaid to the complainant on 9.4.2010 due to insufficiency of funds. The complainant issued legal notice on 19.4.2010 to the petitioner through his counsel to make the payment within fifteen days. The notice was returned with an endorsement that the addressee was not found. The complainant also sent a notice through UPC, which was duly received by the accused. It is in these circumstances, the complaint was filed by the complainant against the accused before the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. 3. Notice of accusation was framed and put to the accused by the learned Chief Judicial Magistrate on 19.4.2011. Statements of the CWs were recorded. It is in these circumstances, the complaint was filed by the complainant against the accused before the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. 3. Notice of accusation was framed and put to the accused by the learned Chief Judicial Magistrate on 19.4.2011. Statements of the CWs were recorded. The evidence of the complainant was closed by the learned Chief Judicial Magistrate on 6.9.2011 and the matter was ordered to be listed for recording the statement of the accused under Section 313 Cr.P.C on 27.9.2011. Statement of the accused under Section 313 Cr.P.C. was recorded on 28.12.2011. The accused had also filed an application under Section 45 of the Indian Evidence Act for examining the cheque in question by questioned document expert to verify whether the cheque is forged or genuine one. The application was rejected by the learned Chief Judicial Magistrate on 1.12.2012 and the case was ordered to be listed for recording of statements of DWs on 27.12.2012. Neither DWs were present on 27.12.2012 nor steps were taken by the accused. Statement of the accused was recorded in the court separately that he would produce all DWs on self responsibility. Last opportunity was granted to the accused to produce all DWs on self responsibility on 7.2.2013. The Presiding Officer was on leave on 7.2.2013. The case was taken up on 22.2.2013, on which date the accused was not present. On 18.3.2013, the Presiding Officer was on leave. The case was fixed for 8.4.2013, on which date, learned Chief Judicial Magistrate ordered that the accused be served by way of bailable warrant in the sum of Rs.2000/- with one surety in the like amount for 30.4.2013. Bailable warrant issued to the accused were not received back either served or un-served. On 30.4.2013, the learned Chief Judicial Magistrate again ordered issuance of bailable warrant in the sum of Rs.2000/- with one surety in the like amount for 23.5.2013 on old process fee for procuring presence of the petitioner. However, the accused was not present on 23.5.2013. Again bailable warrants were issued to procure the presence of the accused for 17.6.2013. The Presiding Officer was on leave on 17.6.2013. The accused was not present on subsequent dates, i.e. 4.7.2013, 10.7.2013 and 22.7.2013. On 20.8.2013, the learned Chief Judicial Magistrate ordered that the accused be served through non-bailable warrant for 27.8.2013. Again bailable warrants were issued to procure the presence of the accused for 17.6.2013. The Presiding Officer was on leave on 17.6.2013. The accused was not present on subsequent dates, i.e. 4.7.2013, 10.7.2013 and 22.7.2013. On 20.8.2013, the learned Chief Judicial Magistrate ordered that the accused be served through non-bailable warrant for 27.8.2013. The accused was not present on 27.8.2013, on which date, it was ordered that the accused be served by non-bailable warrant through Dy. S.P. Rohru, for 10.9.2013. However, the accused did not appear in the Court on 10.9.2013. Learned Chief Judicial Magistrate closed the evidence of the accused on 10.9.2013. 4. The accused filed revision petition against the order dated 10.9.2013 before the learned Sessions Judge Kinnaur at Rampur Bushahr. He dismissed the same on 26.9.2013. 5. What emerges from the facts enumerated hereinabove, more particularly, zimini orders passed by the learned Chief Judicial Magistrate from time to time, is that the accused has failed to produce DWs. On most of the dates, he was absent. Notice of accusation was put to the accused on 19.4.2011. The evidence of the complainant was closed on 6.9.2011. Statement of the accused under Section 313 Cr.P.C. was recorded on 28.12.2011. The application filed by the accused under Section 45 of the Indian Evidence Act for examining the cheque in question by questioned document expert was rejected by the learned Chief Judicial Magistrate on 1.12.2012. The DWs were summoned by the learned Chief Judicial Magistrate for 27.12.2012. Neither DWs were present nor steps were taken by the accused. On 27.12.2012, last opportunity was granted to the accused to produce all DWs on self responsibility on 7.2.2013. Thereafter, the accused remained absent, as noticed above. Learned Chief Judicial Magistrate was constrained to issue bailable warrants against him on 8.4.2013. Thereafter, again the accused was not present on 30.4.2013, 23.5.2013, 4.7.2013, 10.7.2013 and 22.7.2013. On 20.8.2013, the learned Chief Judicial Magistrate issued non-bailable warrants against the accused. Thereafter, the case was listed on 27.8.2013, but the accused did not appear in the Court. On 10.9.2013, learned Chief Judicial Magistrate closed the evidence of the accused. The accused has adopted dilly-dally tactics by not appearing before the Court. He had not produced his evidence despite numerous opportunities granted to him. Learned Advocate appearing on his behalf before the learned Chief Judicial Magistrate sought numerous adjournment to advance the arguments. On 10.9.2013, learned Chief Judicial Magistrate closed the evidence of the accused. The accused has adopted dilly-dally tactics by not appearing before the Court. He had not produced his evidence despite numerous opportunities granted to him. Learned Advocate appearing on his behalf before the learned Chief Judicial Magistrate sought numerous adjournment to advance the arguments. The petitioner cannot be shown any indulgence at this stage by giving him more opportunities to produce his evidence. He has adopted dilatory tactics. There is no perversity or any illegality in the impugned order dated 10.9.2013 passed by learned Chief Judicial Magistrate, Kinnaur, which has been affirmed by the learned Sessions Judge, Kinnaur at Rampur Bushahr on 26.9.2013. The Court has decided these petitions without going into the question whether the petition under Section 482 Cr.P.C. against the order passed by the learned Sessions Judge in criminal revision is maintainable. The question is left open. 6. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in the petitions and the same are dismissed. The pending application(s), if any, also stands dismissed. No costs.