Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 298 (RAJ)

Ranjit Singh v. Raju Lal

2018-01-22

SABINA

body2018
JUDGMENT Sabina, J. - Petitioner has filed this petition under Section 397 read with Section 401 of Criminal Procedure Code 1973 (hereinafter referred to as 'Cr.P.C.'), challenging the order dated 26.04.2017, whereby Appellate Court while allowing the appeal filed by the respondent remanded the trial to the trial Court for a fresh decision. 2. Learned counsel for the petitioner has submitted that the petitioner had filed the complaint against the respondent with regard to dishonour of cheque dated 01.07.2010 in the sum of Rs. 1,50,000/-. Trial court vide judgment/order dated 01.5.2015 ordered the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "the Act'). 3. During the pendency of the appeal, petitioner moved an application under Section 391 Cr.P.C. for permission to lead additional evidence. By way of additional evidence petitioner wanted to produce on record a complaint filed by him in Police Station Harmada on 2.6.2010, Stamp Paper dated 2.3.2010 executed by the son of the petitioner with regard to cheque in question and residential proof of the petitioner. The said application was dismissed by the Appellate Court and revision petition filed by the respondent, i.e. S.B. Criminal Revision No. 1867/2016 was dismissed by this Court. Hence, the Appellate Court has erred in remanding the case to the trial Court for a fresh decision by allowing the petitioner, to lead evidence qua the complaint dated 2.6.2010 and Stamp Paper dated 2.3.2010. 4. None has appeared on behalf of the respondent, despite service. 5. In the present case, respondent had faced trial under Section 138 of the Act on a complaint filed by the petitioner. Trial Court has ordered the conviction and sentence of the petitioner under Section 138 of the Act vide order dated 01.05.2015. In an appeal filed by the respondent, an application was moved under Section 391 Cr.P.C. for permission to lead additional evidence. The said application was dismissed by the Appellate Court and revision petition filed by the respondent against the said order was dismissed by this Court vide order dated 08.12.2016. 6. Order dated 08.12.2016 reads as under:- "Petitioner has filed this petition under Section 397 read with Section 401 of Criminal Procedure Code 1973 (hereinafter referred to as ' Cr.P.C.'), challenging the order dated 14.9.2016, whereby the application moved by the petitioner under Section 391 Cr.P.C. was dismissed. 6. Order dated 08.12.2016 reads as under:- "Petitioner has filed this petition under Section 397 read with Section 401 of Criminal Procedure Code 1973 (hereinafter referred to as ' Cr.P.C.'), challenging the order dated 14.9.2016, whereby the application moved by the petitioner under Section 391 Cr.P.C. was dismissed. Learned counsel for the petitioner has submitted that the documents now sought to be produced by the petitioner by way of additional evidence in appeal were very necessary for the just decision of the case. Petitioner had faced trial in a complaint filed by the respondent No.1 under Section 138 of the Negotiable Instruments Act 1881 (hereinafter referred to as 'the Act'). Trial court vide judgment/order dated 1.5.2015 ordered the conviction and sentence of the petitioner under Section 138 of the Act. Aggrieved against his conviction and sentence as ordered by the trial court, petitioner preferred an appeal. During the pendency of the appeal , petitioner moved an application under Section 391 Cr.P.C. for permission to lead additional evidence. By way of additional evidence petitioner wants to produce on record a complaint filed by him in Police Station Harmada on 2.6.2010, Stamp Paper dated 2.3.2010 executed by the son of the petitioner with regard to cheque in question and residential proof of the petitioner. The documents sought to be produced by the petitioner were in his knowledge but petitioner failed to prove the documents now sought to be produced on the record while leading his defence evidence during trial. Learned trial court while dismissing the application of the petitioner held that so far as document dated 2.6.2010 is concerned, it was merely a photocopy and there was no endorsement of the Police Station on the said document. So far as agreement dated 2.3.2010 is concerned, the learned trial court held that it was signed by Raju Lal but it was not evident as to when the Stamp Paper had been purchased and by whom. Moreover the document was merely a photocopy. So far as the residential proof of the petitioner is concerned, the learned trial court held that in this regard petitioner had not raised any objection during trial. Thus, the reasons given by the trial court while dismissing the application moved by the petitioner under Section 391 Cr.P.C. are sound reasons and call for no interference. Dismissed." 7. So far as the residential proof of the petitioner is concerned, the learned trial court held that in this regard petitioner had not raised any objection during trial. Thus, the reasons given by the trial court while dismissing the application moved by the petitioner under Section 391 Cr.P.C. are sound reasons and call for no interference. Dismissed." 7. Since, the application moved by the respondent to lead additional evidence with regard to the complaint dated 02.06.2010 and Stamp Paper dated 02.03.2010 had been dismissed up to this Court, Appellate Court fell in error in remanding the case to the trial Court. Infact, the Appellate Court was required to dispose of the appeal on merits and could not have remanded the case to the trial Court, in view of the order passed on application under Section 391 Cr.P.C. with regard to the documents in question. 8. Accordingly, this petition is allowed, impugned order dated 26.04.2017 is set aside. Appellate Court is directed to dispose of the appeal on merits. Parties are directed to appear before the Appellate Court on 15.02.2018.