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2015 DIGILAW 1619 (RAJ)

Madan Bhatiya v. State of Rajasthan

2015-09-02

VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This criminal misc. petition under section 482 CrPC has been filed by the petitioner against the order dated 24.04.2015 passed by Special Judge (SC/ST Cases), Sri Ganganagar (for short 'the revisional court' hereinafter) in Criminal Revision No.90/2015. The petitioner has also challenged the order dated 23.03.2015 passed by Special Judicial Magistrate (N.I.Act Cases) No.2, Sri Ganganagar (for short 'the trial court' hereinafter), whereby the trial court has dismissed the application filed by the petitioner under section 311 CrPC for summoning Investigating Officer-Shanker Lal as defence witness. 2. The proceedings under section 138 of the Negotiable Instrument Act, 1881 (for short 'the N.I.Act' hereinafter), initiated at the instance of respondent No.2, are pending against the petitioner before the trial court. In the said proceedings, after recording of the statements of the complainant, the petitioner moved an application under section 311 CrPC and stated that one Smt. Kusum Sharma wife of Dayanand filed an FIR 223/2011 against the complainant at Police Station, Kotwali, Sri Ganganagar, which was investigated by Shanker Lal and during the course of investigation, the statements of complainant were recorded on 19.06.2011, wherein the complainant has specifically stated that he is a financier and to prove the fact that the complainant is the financier, the Investigating Officer - Shanker Lal is required to be summoned for giving evidence. 3. The said application was opposed by the complainant and the trial court, after considering the arguments of both the parties, has rejected the said application while observing that the petitioner has contended that the cheque in question was handed over to the complainant as a security against the loan amount of Dayanand, however, the petitioner has not produced Dayanand in evidence. It has also been observed by the trial court that the petitioner has not replied to the notice sent by the complainant to put forward the story that the cheque in question was handed over by him as security against the loan advanced by the complainant to Dayanand. The trial court has also observed that there is no necessity or desirability to take the evidence of Investigating Officer - Shanker Lal for the purpose of deciding the proceedings under section 138 of the N.I.Act. The trial court has also observed that there is no necessity or desirability to take the evidence of Investigating Officer - Shanker Lal for the purpose of deciding the proceedings under section 138 of the N.I.Act. The trial court has also observed that looking to all the facts and circumstances of the case, it appears that the petitioner has filed the application only with intention to delay the proceedings. After observing this, the trial court has rejected the application filed by the petitioner vide order dated 23.03.2015. 4. Being aggrieved with the order of the trial court dated 23.03.2015, the petitioner preferred the aforesaid revision before the revisional court, however, the revisional court has rejected the same while treating it as not maintainable. Hence, this petition. 5. Learned counsel for the petitioner has submitted that the evidence of Investigating Officer - Shanker Lal is necessary and the trial court has grossly erred in rejecting the application filed by the petitioner for summoning the Investigating Officer - Shanker Lal, so also the revisional court has erred in rejecting the revision petition filed by the petitioner. Learned counsel for the petitioner has submitted that in fact the petitioner has handed over the cheque in question to the complainant as security in lieu of loan advanced by the complainant to Dayanand and to prove this fact, the evidence of Investigating Officer - Shanker Lal is necessary, who has investigated the complaint filed against the complainant by the wife of Dayanand. In support of the above contentions, learned counsel for the petitioner has placed reliance on decision of this Court in Laxmi Mal Lodha & Anr. v. Suresh Lodha reported in 2011 (1) Cr LR 298. 6. Heard learned counsel for the petitioner and perused the impugned orders passed by both the courts below. 7. When the petitioner has failed to put forth a case before the trial court to the effect that he has handed over the cheque in question to the complainant as security against the loan advanced by him to Dayanand, no case for summoning the Investigating Officer - Shanker Lal, who has investigated the complaint filed by wife of Dayanand, is made out. The trial court has rightly observed that when the petitioner has not produced Dayanand in evidence to prove the fact that the cheque in question was handed over to the complainant by the petitioner as security against the loan advanced by the complainant to Dayanand, no case for allowing the application under section 311 CrPC is made out. The facts of the above cited case are quite distinguishable from that of present case, therefore, the decision rendered by this Court in Laxmi Mal Lodha & Anr. v. Suresh Lodha (supra) is of no help to the petitioner. 8. In view of the above discussions, I do not find any merit in this petition and the same is, therefore, dismissed. Stay petition also stands dismissed. Petition dismissed.