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2018 DIGILAW 1504 (HP)

Rajeev Sharma v. Sanjeev Kumar Jain

2018-08-13

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Having regard to the nature of order this court proposes to pass in the instant proceedings, it is not necessary to give facts in detail, save and except that the appellant-complainant (hereinafter, ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code in the court of Chief Judicial Magistrate, Una, District Una, Himachal Pradesh, against respondent-accused, which came to be registered as Case No. 299-1-2004 RBT No. 38-II-2012, alleging therein that he alongwith accused had been running a cable network business in Una town in the name and style of Shubh Cable Network, but since there was some financial dispute inter se partners, complainant as well as respondent entered into a written agreement dated 3.7.2004. As per agreement, respondent-accused handed over two cheques to the complainant bearing No. 972294 dated 3.7.2004 and No. 972295 post-dated 17.7.2004 for Rs.9.5 Lakh each, however, fact remains that on presentation both the aforesaid cheques were dishonoured and returned vide memo dated 20.11.2004 with the remarks that payment of cheques has been stopped by the accused. After having received aforesaid memo from the Bank concerned, complainant served upon respondent-accused a legal notice vide registered post on 23.11.2004, calling upon him to make payment good. Respondent-accused failed to make payment and as such, complainant was compelled to initiate proceedings under Section 138 of the Negotiable Instruments Act in the court of learned Chief Judicial Magistrate, Una, District Una, Himachal Pradesh. Respondent-accused took defence before the court below that signatures on the cheques in question were obtained by the complainant on gun point and as such, court below vide judgment dated 2.1.2013, acquitted the respondent-accused of the charges framed against him. 2. Being aggrieved and dissatisfied with the aforesaid judgment of acquittal passed by Chief Judicial Magistrate, Una, complainant preferred an appeal bearing No. 02 of 2013 in the court of learned Additional Sessions Judge(I), Una, District Una, Himachal Pradesh, under Sections 372 and 374 CrPC, however, the fact remains that same was dismissed being not maintainable, because, against order of acquittal, complainant ought to have filed appeal under Section 378(4) CrPC in this Court. In the aforesaid background, complainant has approached this Court, in the instant proceedings, seeking therein conviction of respondent-accused after setting aside judgment of acquittal recorded by learned Chief Judicial Magistrate, Una. 3. In the aforesaid background, complainant has approached this Court, in the instant proceedings, seeking therein conviction of respondent-accused after setting aside judgment of acquittal recorded by learned Chief Judicial Magistrate, Una. 3. During proceedings of the case at hand, complainant filed an application under Section 311 read with Section 482 CrPC being CrMP No. 296 of 2018, seeking therein permission to place on record, judgment dated 18.10.2017 titled State of Himachal Pradesh vs. Rajeev Sharma, case RBT No. 150-II-16/05 passed by learned Additional Chief Judicial Magistrate, Court No.1, Una, District Una, Himachal Pradesh, whereby court below held present complainant Rajeev Sharma not guilty of having committed offences punishable under Sections 148, 452, 386, 324, 506 read with Section 149 IPC in FIR No. 771/04 dated 7.11.2004 registered at Police Station, Una, District Una, Himachal Pradesh and acquitted him of the aforesaid charges framed against him. Judgment dated 18.10.2017 passed by Additional Chief Judicial Magistrate, Court No. 1, Una, further reveals that FIR No. 771/04 dated 17.11.2004 came to be registered by Police Station, Una, District Una, Himachal Pradesh at the behest of respondent-accused namely Sanjeev Kumar Jain, who had alleged that present complainant had procured his signatures on cheques detailed herein above on gun point. Police, after completion of investigation, presented Challan in the court of learned Additional Chief Judicial Magistrate, Una, Himachal Pradesh, wherein complainant was charged with offences punishable under Sections 148, 452, 324, 506 read with Section 149 IPC, however, as has been noticed herein above, subsequently, learned Court below, on the basis of material adduced on record by respective parties, held present complainant Rajeev Sharma not guilty of having committed offences under aforesaid Sections and arrived at a definite conclusion that “evidence adduced on record by defence i.e. present complainant goes to show that respondent-accused had cooked up a story with regard to accused obtaining his signatures on stamp papers/agreement and cheques of Rs.19.00 Lakh on gun/revolver/knife point solely with a view to escape the liability of consequence of cheques of Rs.19.00 Lakh and agreement dated 3.7.2004 executed in favour of accused.” (para-22 of judgment dated 18.10.2017, passed by Additional Chief Judicial Magistrate, Court No.1, Una). 4. Today, during proceedings of the case, Mr. 4. Today, during proceedings of the case, Mr. Subhash Sharma, learned counsel representing the respondent-accused namely Sanjeev Kumar Jain, fairly stated that in view of judgment rendered by Additional Chief Judicial Magistrate, Court No.1, Una, dated 18.10.2017 in case RBT No. 150-II-16/05, matter needs to be remanded back for adjudication afresh. Mr. Sharma, fairly submitted that though he has no objection in case application having been filed by the complainant under Section 311 CrPC is allowed and judgment in question is taken on record, but, in that eventuality, respondent-accused is also required to be afforded with an opportunity to lead evidence in rebuttal, if any. 5. Mr. B.S. Attri, learned counsel representing the complainant stated that though he is not averse to the submission having been made by the learned counsel representing the respondent-accused but appellant-complainant is litigating in Courts since the year 2004 i.e. for the last fourteen years, for getting his own money as such, learned Court below may be directed to dispose of the complaint filed under Section 138 of the Negotiable Instruments Act in a time bound manner. 6. Consequently, in view of the facts and circumstances of the case narrated above as well as fair stand adopted by the learned counsel representing the parties, Judgment dated 2.1.2013 passed by learned Chief Judicial Magistrate, Una, District Una, Himachal Pradesh in Case No. 299-1-2004 is quashed and set aside. Complaint is restored to its original number and position. Matter is remanded back to the court of learned Chief Judicial Magistrate, Una, District Una, Himachal Pradesh, for fresh adjudication in light of judgment dated 18.10.2017 rendered by learned Additional Chief Judicial Magistrate, Court No.1, Una, Himachal Pradesh in case RBT No. 150-II-16/05. Learned Court below is directed to decide the complaint having been filed by the complainant afresh taking into account judgment dated 18.10.2017 rendered by Additional Chief Judicial Magistrate, Court No.1, Una, Himachal Pradesh in case RBT No. 150-II-16/05. 7. Since evidence has already been led on record by the respective parties, learned Court below is only expected to take into consideration judgment dated 18.10.2017 passed by Additional Chief Judicial Magistrate, Court No.1, Una, in case RBT No. 150-II-16/05. 8. Needless to say, respondent-accused shall be afforded an opportunity of rebuttal, if any as far as judgment dated 18.10.2017 (supra) is concerned. 8. Needless to say, respondent-accused shall be afforded an opportunity of rebuttal, if any as far as judgment dated 18.10.2017 (supra) is concerned. This Court also can not lose sight of the fact that complainant had filed complaint under Section 138 of the Act ibid in the year 2004 i.e. fourteen years back as such, this Court hopes and trusts that learned Court below shall dispose of the complaint under Section 138 of the Act ibid expeditiously, preferably within a period of three months from today. Learned counsel undertake to cause presence of the parties on 21.8.2018, before the learned Court below, enabling it to proceed with the matter as per this judgment. Parties shall render all necessary cooperation to the learned Court below, enabling it to do the needful within the stipulated time. All pending applications, stand disposed of. Copy dasti.