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2019 DIGILAW 1959 (RAJ)

Prabhu Devi v. Kamlesh Bunkar

2019-07-15

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. 1. Petitioner has preferred this Criminal Miscellaneous Petition aggrieved by order dated 02.04.2019 passed by Special Metropolitan Magistrate (NI Act) No.5, Jaipur Metropolitan, Jaipur, whereby application filed by the petitioner under Section 91 & 311 of Cr.P.C. was dismissed. 2. It is contended by counsel for the petitioner that the sale deed was executed between petitioner and the respondent. Petitioner purchased property and gave cheques but since possession of the property was not handed over, petitioner stopped the payment of the cheques on which the complainant filed a cheque dishonour complaint before the Court below. 3. It is contended that in the sale deed there was a recital, if the cheques are dishonoured the sale deed would automatically stand cancelled. It is thus argued that there was no legally enforceable debt and the sale deed was a document which was relevant for deciding the controversy in question. 4. Counsel for the petitioner has placed reliance on "Salman Khan vs. State of Rajasthan" (S.B. Criminal Misc. Petition No. 606/2015) decided on 10.04.2015, wherein, Court has referred to the judgment of Apex Court in "Hanuman Ram vs. The State of Rajasthan & Ors." 2008 (4) RCR (Criminal) 823, wherein Apex Court has held that Courts should summon a witness who is necessary for the just and proper decision of a case and cannot refuse to call a witness on account of error of the party. 5. Counsels for the complainant have opposed the Criminal Miscellaneous Petition. It is contended that the cheque in question were given way back in the year 2015. In the sale deed itself, it was mentioned that possession of the property has been handed over to the petitioner. Petitioner has moved several applications under Section 91 Cr.P.C. which were rejected by the Court and petitioner was afforded ample opportunities to lead evidence in defence and opportunities were given on cost as well. 6. It is also contended that the matter was fixed for final arguments on 06.12.2018 and thereafter on as many as seven occasions but instead of arguing the case, the application was moved on 07.03.2019 after an inordinate delay. 7. It is also contended that the sale deed is not relevant for just decision of the case. 8. I have considered the contentions. 9. 7. It is also contended that the sale deed is not relevant for just decision of the case. 8. I have considered the contentions. 9. Legal proposition cannot be disputed that Court may at any stage of any inquiry, trial or other proceedings under the Code, summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine the person already examined. Similarly, the Court has ample power to summon any document which is desirable for the purpose of any trial or other proceedings before the Court. 10. However, in the present case in hand, petitioner had earlier also moved an application under Section 91 Cr.P.C. which was dismissed by the Court. The accused was examined by the Court on 02.06.2018, thereafter, ample opportunities were given to the petitioner to produce his defence evidence and opportunity was also given on cost. Finally, defence evidence was closed on 14.11.2018 and the matter was fixed for final arguments. Time was sought on 06.12.2018, 18.12.2018, 07.01.2019, 21.01.2019, 22.01.2019, 02.02.2019 & 02.03.2019 for final arguments. Thereafter, the present application was filed on 07.03.2019. 11. This Court is of the considered view that if an application is filed for the purpose of delaying the proceedings, the same should not be entertained by the Court. There is specific recital in the registered sale deed of handing over of possession and cheque number is also mentioned in the sale deed. Dishonour of said cheque clearly entitles the complainant to file a cheque dishonour complaint. Petitioner after seeking as many as seven adjournments for producing defence evidence and even after imposition of cost has moved the present application to delay the trial of the case. 12. This Court is thus of the view that Court below has not committed any error in rejecting the application filed by the petitioner. For the delay and latches caused by the petitioner, the present Criminal Miscellaneous Petition is dismissed with a cost of Rs. 10,000/- (Rupees Ten Thousand Only) to be deposited with the Trial Court and to be paid to the complainant. 13. Stay application stands disposed.