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2017 DIGILAW 1413 (HP)

Gulshan Kumar v. State Bank Of Patiala

2017-12-19

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. (Oral) - The present petition under section 482 of the Code of Criminal Procedure, 1973 has been maintained by the petitioner accused (hereinafter referred to as ''accused'') against the impugned order, dated 18.11.2017, passed by the learned Judicial Magistrate 1st Class, Court No. 2, Ghumarwin, District Bilaspur, in Case No. 25/2 of 2012, titled State Bank of Patiala vs. Gulshan Kumar, wherein evidence of the accused was closed. 2. Brief facts giving rise to the present petition are that the respondent-complainant (hereinafter referred to as ''complainant'') maintained a complaint, under section 138 of the Negotiable Instruments Act (hereinafter referred to as ''Act) against the petitioner-accused. As per the petitioner-accused, he had applied for a term loan for the purpose of purchasing truck and the term loan of Rs. 11,00,000/-, was sanctioned in favour of the petitioner-accused. It is further averred that the petitioner-accused failed to repay the loan amount and in lieu of discharging existing liability, petitioner-accused issued a cheque bearing No. 0001306, dated 22.9.2012, for a sum of Rs. 09,03,244/-, as repayment of the outstanding loan amount. The respondent-complainant presented the said cheque for collection, in his account, which was ultimately returned for ''Insufficient funds''. Thereafter, respondent complainant started the legal process, as envisaged, under section 138 of the Negotiable Instruments Act. After closing of the evidence, respondent-complainant, three opportunities were given to the petitioner-accused, including third date, which was given on self responsibility. However, the witnesses could not be presented, as a result thereof, an application for seeking ''dasti summon'' was maintained, but the said application was rejected. Hence, the present petition. 3. Learned Senior Counsel appearing on behalf of the petitioner-accused has argued that as a matter of indulgence, one more opportunity may be granted to the accused to examine the witnesses and as far as witness No.1, is concerned, Manager, State Bank of Patiala, now known as State Bank of India, Branch at Ghandir, Tehsil Jhandutta, District Bilaspur (H.P), the learned Court below may issue dasti summon to witness No. 1. So far as, witnesses No. 2 and 3, namely, Gopal Singh and Kishori Lal, are concerned, the petitioner-accused will produce his witnesses on self responsibility. So far as, witnesses No. 2 and 3, namely, Gopal Singh and Kishori Lal, are concerned, the petitioner-accused will produce his witnesses on self responsibility. On the other hand, learned counsel appearing on behalf of the respondent-complainant-Bank has vehemently argued that the case is now listed for arguments and the present petition has been filed, only to delay the matter and prays for dismissal of the petition. 4. Heard. After hearing learned counsel appearing on behalf of the parties, this Court finds that the defence evidence of the petitioner-accused has been closed by the order of the Court, as he was unable to produce his witnesses. So, in the interest of justice, as argued by the learned Senior Counsel appearing on behalf of the petitioner-accused, one more and final opportunity, if granted to him, however, no prejudice will be caused to the complainant-Bank, as only the matter will be delayed for 10 to 15 days and not more than a month. So, this Court finds that to meet the ends of justice, one more and final opportunity be granted to the petitioner-accused to lead his defence evidence. Accordingly, the present petition is allowed and it is ordered that the petitioner accused will produce his evidence before the learned Court below on 9th January, 2018. Dasti summon, will be given to the petitioner-accused on taking steps. Dasti summon will be given to the petitioner-accused on filing of Process fee by him, before the learned Court below, for the service of Manager, State Bank of India, Branch Ghandir, Tehsil Jhandutta, District Bilaspur (H.P) alongwith the record i.e. agreement of hypothecation of loan to the accused, Gulshan Kumar, son of Ram Dass Sharma, resident of Village Kharota, Pargana Sunhani, Tehsil Jhandutta, District Bilaspur. The petitioner-accused will produce his witnesses at Serial No.2 and 3, namely, Gopal Singh and Kishori Lal, on self responsibility, on that day. Learned counsel appearing on behalf of the parties submitted that they will inform their learned counsel before the Court below about the present order by way of telephonic call. However, it is made clear that no further opportunity shall be granted to the petitioner-accused before the learned Court below. Ordered accordingly. Learned counsel appearing on behalf of the parties submitted that they will inform their learned counsel before the Court below about the present order by way of telephonic call. However, it is made clear that no further opportunity shall be granted to the petitioner-accused before the learned Court below. Ordered accordingly. The petitioner-accused to take steps for the service of witness No. 1, within two days and dasti summons be issued for 9th January, 2018 and witnesses No. 2 and 3, be produced on self responsibility on that day. The complainant-Bank will be at liberty to crossexamine the witnesses on all points and lead evidence in rebuttal. However, no further opportunity will be granted to the petitioner-accused after 9th January, 2018. 5. In view of the above, the petition is disposed of in the aforesaid terms, so also the pending application (s), if any. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Copy dasti.