JUDGMENT : Ajay Mohan Goel, J. 1. By way this revision petition, the petitioner has challenged the judgment passed by the Court learned Sessions Judge, Solan, in Criminal Appeal No. 4-S/10 of 2016, dated 01.10.2016, vide which learned Appellate Court while allowing the appeal filed by the present respondent has remitted the case back to learned trial Court for decision afresh after setting aside the judgment passed by the Court of learned Judicial Magistrate 1st Class, Kandaghat, in case number 234 of 2015, dated 30.12.2015, whereby learned trial Court in a complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’) by the present petitioner had convicted the present respondent for commission of offence punishable under Section 138 of the NI Act and had sentenced him to undergo simple imprisonment for one month and also to pay compensation to the tune of Rs. 2,20,000/- to the complainant. 2. Brief facts necessary for the adjudication of the present case are that a complaint under Section 138 of the NI Act was filed by the present petitioner (hereinafter referred to as ‘complainant) against the present respondent (hereinafter referred to as ‘accused’) on the allegations that accused and his mother had approached the complainant to sell their land situated in mauza Nagar Sihauna and an agreement to sell the said land was entered into between the parties, in lieu of which, the accused and his mother received an amount of Rs. 1,00,000/- from the complainant as earnest money. Further as per the complainant, as subsequently the land was not found suitable by the complainant as it was discovered that there was dispute with regard to the said land with other co-sharers and litigations were also going on between the parties, the said agreement to sell was cancelled by both the parties with their mutual consent. As the earnest money was not readily available with the accused, accordingly, he promised to repay the earnest money to the complainant within six months. Further as per the complainant on 05.05.2012, accused approached him and requested him to advance him Rs. 10,000/- more on the pretext to discharge some debt and promised to repay the whole amount including Rs. 1,00,000/- received earlier as well as Rs.10,000/- whenever the complainant demanded. As per the complainant he paid Rs. Further as per the complainant on 05.05.2012, accused approached him and requested him to advance him Rs. 10,000/- more on the pretext to discharge some debt and promised to repay the whole amount including Rs. 1,00,000/- received earlier as well as Rs.10,000/- whenever the complainant demanded. As per the complainant he paid Rs. 10,000/- also to the accused on 05.05.2012 and thereafter, in order to repay the said debt/liability, accused issued a post dated cheque bearing No. 048242, dated 29.10.2012 for an amount of Rs. 1,10,000/- in favour of the complainant drawn at Baghat Urban Co-operative Bank Ltd. Solan, HP. As per complainant when said cheque was presented for valuable encashment, the same was returned by the bank concerned vide memo No. 6976, dated 18.12.2012 with endorsement “Insufficient Funds”. As per complainant, on 09.01.2013, he served a legal notice of demand upon the accused through his counsel by way of Registered AD, which was duly served upon the accused on 10.01.2013. However, even after the service of said notice, the accused failed to pay the cheque amount to him. In these circumstances the complainant approached the Court by filing a complaint under Section 138 of the NI Act against the accused. 3. As the learned trial Court found a prima facie case against the accused, notice of accusation was accordingly put to him, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the complainant entered the witness box himself and also examined four other witnesses. Thereafter statement of accused was recorded under Section 313 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’). 5. On the basis of evidence led by the parties, learned trial Court held that it stood established on record that accused had issued cheque bearing No. 048242, dated 29.10.2012, for an amount of Rs. 1,10,000/- in lieu of earnest money he had received from the complainant regarding sale of land and also in lieu of Rs. 10,000/- which he had borrowed from the complainant, which on presentation in the bank for encashment was dishonoured due to “Insufficient Funds” in the account of accused. Learned trial Court held that it was not disputed by the accused in his statement recorded under Section 313 of Cr.P.C that he had issued a cheque to the complainant which was dishonoured on its being presented to the bank concerned. Learned trial Court held that it was not disputed by the accused in his statement recorded under Section 313 of Cr.P.C that he had issued a cheque to the complainant which was dishonoured on its being presented to the bank concerned. On these bases, it was concluded by learned trial Court that accused had committed an offence punishable under Section 138 of the NI Act and accordingly, it convicted the accused for commission of said offence and imposed sentence upon him. 6. In appeal, the judgment so passed by learned trial Court has been set aside by the learned Appellate Court on the grounds that the statements of complainant and other complainant’s witnesses were recorded by learned trial Court on 17.09.2013 and records demonstrate that on that date only the accused appeared in person in the Court and he was not accompanied by his Counsel and on these bases, learned Appellate Court observed as under. “Though the aforesaid witnesses have been crossexamined but it appears that such crossexamination in the absence of the learned defence counsel have been conducted by the court itself on behalf of the accused. Accordingly on the basis of the record of the learned Court below it is clear that no opportunity whatsoever to cross-examine the complainant and other witnesses examined by him was afforded to the accused as his counsel was not present in the Court at that time and as such the statements of the complainant and his witnesses are proved to have been recorded in the absence of learned defence counsel. Thus by examination of the complainant and his witnesses by the learned court below in the absence of learned defence counsel, great prejudice has been caused to the accused.” Learned Appellate Court further held that as defence counsel was not present in the Court at the time of examination of complainant and other complainant witnesses it was the mandatory duty of learned trial Court to either adjourn the case for cross examination or have had appointed some other counsel to cross examine the witnesses. Learned Appellate Court further held that it cannot possibly be denied that cross examination of a witness in a criminal case is very vital, important and valuable right of an accused, and therefore, great prejudice has been caused to the accused by not affording him an opportunity to cross-examine the complainant and other witnesses. Learned Appellate Court further held that it cannot possibly be denied that cross examination of a witness in a criminal case is very vital, important and valuable right of an accused, and therefore, great prejudice has been caused to the accused by not affording him an opportunity to cross-examine the complainant and other witnesses. Learned Appellate Court also held that record demonstrates that it is not as if the statements of complainant and other witnesses were recorded by learned trial Court in the absence of learned defence counsel but even statement of accused under Section 313 of Cr.P.C was also recorded in the absence of learned defence counsel, however, the proper course for the learned Court below was to adjourn the case and by not doing so, a serious prejudice has been caused to the accused. Learned Appellate Court further held that in this background, the statement of accused recorded under Section 313 of Cr.P.C should not have been made basis for recording conviction and imposing sentence upon the accused. Learned Appellate Court thus allowed the appeal so filed by the accused and remitted the case back by setting aside the judgment passed by the learned trial Court for adjudication afresh. 7. Feeling aggrieved by the judgment so passed by the learned Appellate Court, the complainant has filed the present revision petition. 8. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by the learned Courts below. 9. Learned Appellate Court has primarily set aside the judgment passed by the learned trial Court on two counts which are (a) that learned trial Court erred in not adjourning the case while recording the statement of complainant and other complainant witnesses as defence counsel was not present and (b) that learned trial Court erred in not adjourning the case while recording the statement of accused under Section 313 of Cr.P.C as learned defence counsel was not present. 10. Records of learned trial Court demonstrate that when the case was listed on 16.05.2013, on the said date, complainant was present in the Court in person whereas accused was present with Mr. Naresh Kumar, Advocate. On the said date, notice of accusation was put to the accused to which he pleaded not guilty and claimed trial. 10. Records of learned trial Court demonstrate that when the case was listed on 16.05.2013, on the said date, complainant was present in the Court in person whereas accused was present with Mr. Naresh Kumar, Advocate. On the said date, notice of accusation was put to the accused to which he pleaded not guilty and claimed trial. Learned trial Court fixed the matter for the examination of complainant’s witnesses on 09.07.2013. 11. On 09.07.2013, the complainant as well as the accused were present with their respective counsel and on the said date, the accused had in fact prayed before learned trial Court that he may be granted some time to make good the payment of cheque amount and his prayer was accepted by learned trial Court and case was fixed for 12.08.2013 to enable the parties to arrive at some out of Court settlement. 12. On 12.08.2013, following order was passed by learned trial Court. “C.W. Bahadur Singh is present. But at the request of the accused ad his learned counsel they seeks time to amicably settled the matter with the complainant. List on 17.09.2013. If settlement is not arrived between the parties, the complainant will adduce his entire evidence on the next date of hearing.” 13. On 17.09.2013, learned counsel for the complainant was present and the accused was present in person. On the said date, statements of CW1 Puran Dutt, CW2 Y.S. Thakur, CW3 Bhagwan Dass, CW4 Ashok Thakur and CW5 Bahadur Singh were recorded. Records further demonstrate that all these five witnesses were cross examined by the accused. It is relevant to take note of the fact that statements of these five witnesses were recorded on 17.09.2013 and the case was finally decided by learned trial Court on 30.09.2015 and there is no application etc. on record filed by the accused to the effect that on 17.09.2013 either he had made any request that the cross examination of complainant’s witnesses be deferred as his counsel was not present or that in fact cross examination of complainant witnesses was not conducted by him but it was conducted by the Presiding Officer of learned trial Court. In other words, no grievance whatsoever was raised by the accused before any forum that he had been prejudiced on account of his counsel not being present in the Court on 17.09.2013 when C.Ws were recorded. 14. In other words, no grievance whatsoever was raised by the accused before any forum that he had been prejudiced on account of his counsel not being present in the Court on 17.09.2013 when C.Ws were recorded. 14. Now incidentally, on 17.09.2013, learned trial Court fixed the case for recording the statement of accused under Section 313 of Cr.P.C for 17.10.2013. Records demonstrates that on 17.10.2013 though the complainant was present with his counsel, the accused was not present in the Court and in these circumstances, learned trial Court passed the following order. “The case is listed for statement of accused under Section 313 Cr.P.C. but neither the accused nor his Ld. Counsel has appeared. Hence, the bail bonds furnished by the accused are cancelled and forfeited to the State of H.P. Let the accused be summoned by way of N.B.W. returnable for 26.11.2013 on filing of P.F within 10 days. Proceedings under Section 446 of Cr.P.C be initiated against the accused and his surety.” 15. Thereafter on 26.11.2013, learned trial Court passed the following order. “NBW issued against the accused has been received back unserved with the report that the accused had gone to Halwara. Therefore, let the accused be summoned by way of non-bailable warrants returnable for 17.01.2014 on filing PF within ten days. The bail bonds furnished by the accused are cancelled and forfeited to the State of H.P. Let proceedings under Section 446 Cr.P.C. be also initiated the accused and his surety. Notice be also issued to the surety of the accused on the aforesaid date.” 16. Records demonstrate that non-bailable warrants issued to the accused were ultimately served upon him on 08.09.2015, on which date, learned trial Court passed the following order. “Today accused produced before this Court as NBW were issued against him. Applicant/accused has moved application under Section 437 of Cr.P.C. for releasing him on bail stating therein that applicant/accused could not appear before the Court due to his ill health. It is further averred that non-appearance of accused person was neither intentional not deliberate and he is ready to furnish surety and personal bonds. Heard. Record perused. Since the accused is ready to furnish personal and surety bonds, mere suspicion that he can jump bail against is not sufficient for curtailing personal liberty of the accused when he is resident of Distt. Heard. Record perused. Since the accused is ready to furnish personal and surety bonds, mere suspicion that he can jump bail against is not sufficient for curtailing personal liberty of the accused when he is resident of Distt. Solan, no useful purpose would be served by curtailing the personal liberty of the applicant/accused. Moreover, he is ready and willing to abide by the terms imposed by this Court while releasing him on bail. No doubt accused had not filed any documentary evidence to support his case but it is generally accepted that bail is the Rule and jail is an exception and considering this, I am of the opinion that at this stage, there is no sufficient ground for curtailing the personal liberty of the accused, hence, bail application of the accused is allowed subject to the conditions: (1) That he will furnish personal bond in th sum of Rs. 50,000/- alongwith one surety in the like amount to the satisfaction of this court. (2) That the accused shall attend the court on each and ever date of hearing. Requisite bonds furnished, attested and accepted by me. The present application stands disposed off. It be registered. Papers after due completion be tagged with main case file for record. List the case for recording of statement of accused under Section 313 of Cr.P.C for 10.09.2015.” 17. On the said date i.e. on 08.09.2015, accused was being represented by Mr. Bharat Sharma, Advocate. This fact is mentioned because earlier, one Mr. Naresh Kumar, Advocate used to appear on behalf of the accused. Be that as it may, on 08.09.2015, the case was ordered to be listed for recording the statement of accused under Section 313 of Cr.P.C on 10.09.2015. On 10.09.2015, also the accused was present in person only and records demonstrate that on the said date, his statement under Section 313 of Cr.P.C was recorded. There is no material on record from which it can be inferred that the accused in any manner was aggrieved by the factum of his counsel not being alongwith him on 10.09.2015 when his statement under Section 313 of Cr.P.C was recorded or that on 10.09.2015 he made any such request to the effect that recording of his statement under Section 313 of Cr.P.C be deferred as his counsel was not present but his request was turned down by learned trial Court. 18. 18. Another important fact which requires consideration at this stage is that Presiding Officers who were holding the Court on 17.09.2013 when C.Ws were examined and cross-examined by the accused in person and on 10.09.2015, when the statement of accused was recorded under Section 313 of Cr.P.C, on which date, accused was present in the Court in person, were not the same. 19. Records further demonstrate that on 09.10.2015, Proxy counsel were present both for complainant as well as for accused. On 11.12.2015, accused appeared in the Court alongwith Mr. Bharat Sharma, Advocate and thereafter on 23.12.2015 he appeared alongwith Mr. Jagdish Chand Advocate. On 23.12.2015 on a request on behalf of the accused, time was granted for hearing by treating the case to be part heard, as a request was made on behalf of the accused that original counsel was not present as his wife was undergoing treatment and was admitted in the Hospital. 20. The above narrated facts clearly and categorically demonstrate that neither on 17.09.2013 nor on 10.09.2015, any request was made by the accused that either the recording of statements of complainant’s witnesses or recording of his statement under Section 313 of Cr.P.C be deferred as defence counsel was not available. Records further demonstrate that accused voluntarily cross examined complainant witnesses on 07.09.2013, which otherwise was his right because no Court can force the accused not to pursue his case himself before the Court and to represent himself through a counsel only. 21. As I have already mentioned above that there is nothing on record from which it can be inferred that any grievance was raised by the accused of any prejudice having been caused to him either on 17.09.2013 or on 10.09.2015 on the count that on the said dates, defence counsel was not present with him. The proceedings further demonstrate that the accused has often changed counsel and on most of the dates he appeared before the Court in person and further he in between failed to appear before the Court and his presence was obtained only by way of issuance of non-bailable warrants. 22. The proceedings further demonstrate that the accused has often changed counsel and on most of the dates he appeared before the Court in person and further he in between failed to appear before the Court and his presence was obtained only by way of issuance of non-bailable warrants. 22. In this background, in my considered view, learned Appellate Court has erred in setting aside the judgment passed by the learned trial Court by holding that the accused was materially prejudiced on account of his not being accompanied by a defence counsel on 17.09.2013 when complainant’s witnesses were examined and thereafter on 10.09.2015 when his statement under Section 313 of Cr.P.C was recorded. While arriving at the said conclusion, learned Appellate Court has erred in not appreciating that neither on the said dates, there was any request made on behalf of accused for adjournment of the case on the ground that his counsel was not present or otherwise, nor any request was made for appointment of any legal aid counsel. The finding returned by learned Appellate Court that cross examination of witnesses in fact was conducted by Presiding Officer, in my considered view, is perverse as the same is not borne out from the records of the case. Records demonstrate that complainant witnesses were cross examined by the accused and presumption of truth is attached to records. Inference to the contrary drawn by learned Appellate Court in the absence of any cogent material on record, in my considered view, is not sustainable in the eyes of law. The findings returned by learned Appellate Court that it was the duty of learned trial Court either to have had adjourned the case or to have had appointed some amicus curiae also has no merit. This is for the reason that in the absence of any prayer having been made on behalf of the accused for the adjournment of the case, it is not the duty of any Court, leave aside learned trial Court in the present case, to have had adjourned the case on its own. Similarly, as I have already observed that no Court can stop any individual from pursuing his case before the Court himself. An amicus can not be forced upon a litigant by the Court. Similarly, as I have already observed that no Court can stop any individual from pursuing his case before the Court himself. An amicus can not be forced upon a litigant by the Court. An amicus can be appointed to assist the Court and for a litigant if either the litigant makes a prayer in this regard or the Court comes to the conclusion that in the facts and circumstance of the case, it will be in the interest of justice to appoint an amicus curiae to assist the Court. Further keeping in view the fact that accused was of and on either appearing with counsel or appearing in person it was not even otherwise a case where the accused was to be accorded legal assistance by the Court. All these important aspects of the matter, in my considered view, have not been appreciated by learned Appellate Court while setting aside the judgment passed by the learned trial Court whereby learned trial Court had convicted the accused for commission of offence punishable under Section 138 of the NI Act. 23. Accordingly, in view of findings returned above, this revision petition is allowed and the judgment passed by learned Appellate is set aside and the case is remanded back to the learned Appellate Court to adjudicate the appeal on merit. Parties through their counsel are directed to appear before the learned trial Court on 24th April, 2017. It is made clear that this Court has not expressed any opinion on the merits of the case and learned Appellate Court shall proceed with the matter strictly as per the merits of the case and shall not in any manner be influenced by any observation made by this Court in the present petition. Revision petition is disposed of accordingly. Pending miscellaneous applications, if any, also stand disposed of.