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Rajasthan High Court · body

2017 DIGILAW 1590 (RAJ)

Chelaram Parihar S/o Shri Ishwar Lal Parihar v. Dashrath Singh S/o Ladu Singh

2017-07-18

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. Heard learned counsel for the complainant applicant and learned counsel representing the respondent accused and perused the material available on record. 2. Having regard to the facts and circumstances of the case and upon a consideration of the arguments advanced at the bar, this Court feels inclined to grant leave to the applicant to file an appeal against the impugned judgment. 3. Accordingly, the application for grant of leave to appeal is allowed. The memo of leave to appeal be treated as an appeal and it be registered as such, which is admitted. The respondent is represented by learned counsel Shri Bharat Boob. 4. With the consent of learned counsel for both the parties, the appeal is being decided today itself. 5. By way of this appeal, the complainant appellant seeks to challenge the judgment dated 13.1.2017 passed by learned Special Metropolitan Magistrate No. 2, Jodhpur in Case No. 33775/2014 (783/2014) whereby the respondent was acquitted from the charge under Section 138 of the N.I. Act. 6. Upon an appreciation of the arguments advanced by the learned counsel for the complainant applicant and the learned counsel representing the respondent and after going through the record, it is apparent that the appellant did not exhibit his affidavit by way of examination in chief during trial. The trial court, also erred and without the complainant's affidavit being exhibited by way of examination in chief, straight off proceeded to direct the accused to cross-examine the applicant complainant. Apparently, the trial court committed a fundamental error in procedure while doing so. The sequence of recording evidence during trial is prescribed in Section 138 of the Evidence Act as per which, the witness shall be first examined in chief thereafter subjected to cross-examination and then (if the party calling him so desires) re-examined. Thus, it was the bounden duty of the trial court while conducting trial of the case, to have adhered to the said procedure even if the counsel representing the complainant committed an error and could failed to exhibit the evidence affidavit by way of his examination in chief. Without having exhibited the affidavit by way of examination in chief, the accused could not have been called upon to cross-examine the complainant. Without having exhibited the affidavit by way of examination in chief, the accused could not have been called upon to cross-examine the complainant. Law is equally well settled that a party cannot be made to suffer on account of fault of his counsel or for the fault of the court. 7. Consequently, I am of the opinion that as the trial court committed fundamental procedural error while conducting the trial, which was a fault equally attributable to the fault of counsel as well as the court itself, the entire trial is vitiated. Not only this, the trial court also mechanically rejected the application filed by the petitioner complainant during trial under Section 311 Cr.P.C. for allowing him to lead evidence by order dated 2.8.2016. Thus, the impugned judgment cannot be sustained. 8. In view of the above discussion, the appeal is allowed. The impugned judgment dated 13.1.2017 passed by learned Special Metropolitan Magistrate No. 2, Jodhpur is quashed and set aside. The matter is remanded to the trial court for holding fresh trial of the case as per law. 9. Needless to say that the accused shall be given full opportunity of cross-examination from the witnesses of the complainant and of leading defence evidence as per law. The parties shall appear before the trial court on 22.7.2017 where after the trial court shall proceed with the matter as per law. Record be returned back forthwith.