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2018 DIGILAW 1032 (JHR)

Bhanu Pratap Singh v. State of Jharkhand

2018-05-09

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : Heard learned counsel for the petitioner. 2. Despite valid service of notice as recorded in the order dated 18th April, 2018 and indulgence granted thereafter to opposite party no. 2 he has not appeared to contest the case. 3. Petitioner seeks special leave to appeal against the judgment of acquittal dated 16th December, 2017 passed by learned Judicial Magistrate, 1st Class, Palamau at Daltonganj in Complaint Case No. 847 of 2013/T. R. No. 60 of 2017, whereunder the sole accused/opposite party no. 2 herein has been acquitted of the charges under Section 138 of Negotiable Instrument Act. 4. As per the case of the complainant, accused had taken a friendly loan of Rs. 4,80,000/- on 7th February, 2013 in the presence of witness with assurance to return it within four months. When he failed to return it within the period stipulated, a Cheque was issued bearing no. 588985 dated 1st July, 2013 amounting to Rs. 4,80,000/- for repayment of loan. On presentation of the Cheque before the Bank, it was dishonoured due to insufficient fund as per Bank’s advice letter communicated to complainant on 2nd July, 2013. Complainant issued legal notice on 11th July, 2013 but no reply thereto was furnished. Accordingly, complaint was lodged against the accused under Sections 420, 406 of Indian Penal Code & 138 of Negotiable Instrument Act on 7th August, 2013 before learned Court of Chief Judicial Magistrate, Palamau at Daltonganj. 5. Upon solemn affirmation and inquiry, learned Court found a prima facie case under Section 138 of Negotiable Instrument Act against the accused person and summoned him to face trial. Charges were framed under Section 138 of Negotiable Instrument Act on his appearance and were explained to him on 30th November, 2017. Thereafter learned Trial Court proceeded with the trial and observed that complainant had produced no witness despite last chance given after several dates. Prosecution evidence was closed and statement of the accused were recorded on 11th December, 2017 under Section 313 Cr. P. C. Defence thereafter denied to adduce evidence. 6. Learned Trial Court took note of the fact that these documents were filed by the complainant: 1. Original cheque bearing its No. 588985, dt. 01.07.13 2. Original withdrawal form of IDBI Bank dated 01.07.13 3. Original letter of IDBI Bank which was communicated to client on 02.07.13 with endorsement “insufficient fund” 4. Original agreement paper 5. 6. Learned Trial Court took note of the fact that these documents were filed by the complainant: 1. Original cheque bearing its No. 588985, dt. 01.07.13 2. Original withdrawal form of IDBI Bank dated 01.07.13 3. Original letter of IDBI Bank which was communicated to client on 02.07.13 with endorsement “insufficient fund” 4. Original agreement paper 5. Original copy of registered slip 6. Carbon copy of Advocate Notice 7. Learned Trial Court referred to ingredients of Section 138 of Negotiable Instrument Act and arrived at an opinion that the complainant had failed to substantiate the charge under Section 138 of Negotiable Instrument Act. The accused was accordingly acquitted. 8. Learned counsel for the petitioner has referred to the order-sheet of complaint case and submits that suddenly the case was transferred on 31st October, 2017 to learned Court presided over by Md. Safdar Ali Naiyar, Judicial Magistrate, 1st Class, Palamau at Daltonganj by the order of Principal District Judge. He further submits that thereafter there was no intimation or notice to the complainant about the proceeding before learned Court held on several dates such as 2nd November, 2017, 29th November, 2017, 30th November, 2017, 1st December, 2017, 5th December, 2017, 6th December, 2017, 7th December, 2017, 8th December, 2017, 11th December, 2017 and finally when the judgment was pronounced on 16th December, 2017. Learned counsel has also referred to cause-list of the said Court dated 14th September, 2017 (Annexure-4), wherein against the serial no. 35 i.e. present Complaint Case No. 847/2013 no date has been shown. Complainant or his counsel were completely at loss about the further proceeding in the matter. Complainant had throughout been diligent in prosecuting the complaint since its institution in August, 2013. However, because of sudden transfer of trial to the present learned Judicial Magistrate, 1st Class, Palamau at Daltonganj, he could not pursue the matter. There was no other reason for the complainant to remain absent in any of the subsequent dates after the case was transferred on 31st October, 2017. In such circumstances, there has been procedural irregularity on the part of learned trial court in arriving at the impugned finding of acquittal. Hence, petitioner may be granted special leave to appeal before appellate court where all grounds available to the petitioner of law or on facts may be agitated. 9. In such circumstances, there has been procedural irregularity on the part of learned trial court in arriving at the impugned finding of acquittal. Hence, petitioner may be granted special leave to appeal before appellate court where all grounds available to the petitioner of law or on facts may be agitated. 9. We have considered the submission of learned counsel for the petitioner and gone through the impugned order as also the relevant material on record relied upon by learned counsel for the petitioner. It appears from copy of order-sheet enclosed that trial of instant case was transferred on 31st October, 2017 to learned Court of Judicial Magistrate, 1st Class, Palamau at Daltonganj whereafter complainant had remained absent and could not adduce any witness in support of the allegation made in the complaint. At the same time, the cause-list of 14th September, 2017 (Annexure-4) shows that there was no date fixed for the present complaint case. We, therefore, find substance in the submission of learned counsel for the petitioner that the proceedings apparently remained unattended on the part of the complainant and his counsel because of lack of due notice. Complainant had filed documents being original cheque, original withdrawal form of IDBI Bank, return memo of Bank dated 2nd July, 2013, original copy of registered slip, carbon copy of Advocate Notice etc. in support of the ingredient of offence under Section 138 of Negotiable Instrument Act. In such circumstances, we are of the view that the petitioner be allowed special leave to appeal to assail the finding of learned Court before Appellate Court. 10. Accordingly, the instant petition is allowed. Petition allowed.