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2017 DIGILAW 1075 (RAJ)

Manoj Kumar v. Sageer son of Shri Babu Khan

2017-04-25

PRASHANT KUMAR AGARWAL

body2017
JUDGMENT : Prashant Kumar Agarwal, J. The complainant-appellant has filed this appeal under sub-section (4) of Section 374 Cr.P.C. against the order dated 29.7.2010 passed by the Additional Judicial Magistrate (First Class) Baran in Criminal Case No. 411/2008 whereby the learned trial Court dismissed the complaint filed by the appellant by the reason of his absence before it and thereby acquitting the respondent-accused for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred "the Act"). 2. Brief relevant facts for the disposal of this appeal are that on complaint being filed by the appellant, cognizance for offence under Section 138 of the Act was taken against the respondent by the trial Court vide order dated 10.11.2008 and when respondent put his appearance before the trial Court, gist of aforesaid offence was read over to him on 8.12.2008 and the case was fixed for recording evidence on behalf of the appellant. It appears that on the joint prayer of the parties, the case was referred to District Legal Services Authority, Baran so that the dispute between them can be settled through compromise but the parties could not arrive to an amicable settlement and, therefore, the case was referred back to the trial Court for further proceedings. Vide order dated 23.6.2010 last opportunity was granted to appellant to produce his evidence and the case was ordered to be listed on 29.7.2010 for that purpose. On the date so fixed neither complainant-appellant was present nor evidence was produced and application for exemption for appearance of appellant was filed. Learned trial Court by declining the application dismissed the complaint itself under Section 256 Cr.P.C. in absence of appellant and as a result thereof respondent-accused was acquitted for the offence for which the complaint was filed. 3. Accused-respondent did not appear before this Court despite due service of notice upon him. 4. In support of the appeal learned counsel for the appellant submitted that initially case was fixed for evidence of appellant for 19.1.2009 but on the joint prayer of the parties the case was referred to the District Legal Services Authority for settlement of dispute by compromise and it remained pending before it till 21.1.2010 when it was referred back to the trial Court as the dispute could not amicably be settled. 5. 5. It was pointed out by the learned counsel for the appellant that on 25.2.2010 time was sought by the respondent-accused as his counsel was not available and on the next date i.e. 3.4.2010 time was sought by appellant for evidence as he was absent. On 23.4.2010 also appellant was absent and, therefore, evidence could not be produced. On 24.5.2010 both the parties were not present and bar members were also not appearing before the Court and on 23.6.2010 appellant was present but respondent was not present and time was sought by appellant and last opportunity was granted. It was pointed out that ultimately on the next date i.e. 29.7.2010 impugned order was passed. 6. Inviting attention of the Court towards aforesaid facts it was submitted by the learned counsel for the appellant that on the joint prayer of the parties matter was referred for settlement to District Legal Services Authority and even respondent undertook to make payment of cheque amount but anyhow the dispute could not amicably be settled and case was referred back to the trial Court and, therefore, it cannot be said that appellant failed to produce his evidence despite sufficient opportunities having been granted to him. It was prayed that matter should have been decided on merit and, therefore, one last opportunity may be granted to appellant to produce his evidence. 7. On consideration of submissions made on behalf of the appellant and on perusal of the record of the trial Court and in the interest of justice, the prayer made on behalf of the appellant is accepted. 8. Consequently, the appeal is partly allowed and the impugned order dated 29.7.2010 passed by the Additional Judicial Magistrate, Baran in Criminal Case No. 411/2008 is quashed and set aside. The trial Court is directed to restore the aforesaid case to its original number and take necessary steps for the appearance of the accused-respondent before it. On the appearance of the respondent, only one opportunity shall be granted to the complainant-appellant to produce his entire evidence and no further opportunity shall be granted to him on any ground. Appellant is directed to appear before the trial Court on 26.05.2017. Record may be sent back immediately to the trial Court along with copy of this order.