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2018 DIGILAW 754 (RAJ)

Ramswaroop Soni v. Yashoda Devi

2018-03-13

KANWALJIT SINGH AHLUWALIA

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JUDGMENT AND ORDER : Kanwaljit Singh Ahluwalia, J. Yashoda Devi-respondent No.2 filed complaint under Section 138 of the Negotiable Instruments Act against Ramswaroop Soni-petitioner and his son Amit Soni performa accused-respondent. 2. The court of Judicial Magistrate No.2, Alwar, vide impugned judgment dated 16.08.2012 (Annx.1) acquitted present petitioner Ramswaroop but convicted Amit Soni performa accused respondent No.2 for offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment. He was also directed to pay Rs.3 lakh as compensation under Section 357(3) Cr.P.C. 3. Aggrieved against the same, Amit Soni preferred appeal No. 26/2012. It will be pertinent to notice here that acquittal of present petitioner Ramswaroop has attained finality as, no appeal was filed by the complainant. 4. The Lower Appellate Court in appeal preferred by Amit Soni had set aside the judgment passed by the trial court and directed that after appellant-Amit Soni and complainant-Yashoda Devi appear before the trial court it shall pass a fresh order/judgment. 5. The trial Judge on 09.10.2014 summoned present petitioner Ramswaroop, whose acquittal had attained finality. Aggrieved against the same, Ramswaroop filed Criminal Revision No. 157/2014. The court of Additional Sessions Judge No.3, Alwar vide impugned judgment dated 25.07.2016 upheld the order passed by the Magistrate. 6. Thus, in the present petition it is prayed that the impugned order(Annx.3) dated 09.10.2014 whereby petitioner was summoned to trial along with order passed by the revisional court below dated 25.07.2016(Annx.4) be set aside. 7. Counsel for the petitioner has submitted that once acquittal of the petitioner had attained finality and no appeal was filed by the complainant, in appeal preferred by Amit Soni proforma co-accused-respondent to which petitioner was not a party, acquittal of the petitioner cannot be questioned. 8. Counsel for the petitioner has submitted that since no opportunity of hearing was afforded to the petitioner, therefore, no order could be passed to the prejudice of the petitioner. 9. Mr. Mohit Gupta, counsel for the respondents has submitted that appellate court below nowhere disturbed the acquittal of the petitioner, but had simply set aside the judgment of the trial court by remitting the matter to the trial court. Trial Court had passed a fresh order to summon petitioner after hearing complainant and convicted co-accused-Amit Soni. 10. 9. Mr. Mohit Gupta, counsel for the respondents has submitted that appellate court below nowhere disturbed the acquittal of the petitioner, but had simply set aside the judgment of the trial court by remitting the matter to the trial court. Trial Court had passed a fresh order to summon petitioner after hearing complainant and convicted co-accused-Amit Soni. 10. Having heard counsel for the parties, this court is of the view that a grave error has been committed by the court of Judicial Magistrate No. 2, Alwar, to summon the petitioner vide impugned order dated 09.10.2014 equally the court of Additional Sessions Judge No. 3, Alwar, vide order dated 25.07.2016 erred to uphold the order of the Magistrate. 11. Once the acquittal of the petitioner had attained finality the court of Magistrate became functus officio and therefore, acquittal of the petitioner could not be disturbed. It could only be done by the higher court, that too after impleadment of the petitioner as a party and affording him opportunity of hearing. Therefore, the order summoning the petitioner is void-ab-initio and non-est. Therefore, same is liable to be set aside. 12. Consequently, the present petition is accepted, impugned order dated 09.10.2014 (Annx.3) and the impugned order passed by the revisional court (Annx.4) dated 25.07.2016 are set aside.