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2020 DIGILAW 192 (RAJ)

Rakesh Yadav v. Akhilesh Sharma

2020-01-22

SANJEEV PRAKASH SHARMA

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JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioner is an accused in a complaint filed by respondent under Section 138 of the Negotiable Instruments Act. At the stage of entering in defence, an application was moved by the accused-petitioner for summoning of witnesses including the Chartered Accountant under Section 233 Cr.P.C. The same has been rejected by the trial court. Aggrieved whereof, the present petition has been filed. 2. Learned counsel for petitioner submits that a Chartered Accountant was required to be called as statement has come in evidence of the complainant that as per the CA report, a complaint has been filed. The trial court however rejected his application stating that no specific reasons have been mentioned for summoning the witness. 3. Learned counsel has taken to this court to Sections 233 Cr.P.C. and 254 Cr.P.C. and has relied on the judgment of this court in Kulvinder Singh Vs. Rajan Taneja, reported in 2017 (2) WLC (Raj.) (UC) 219 and in Neelam Sharma Vs. M/s. Sri Gangadas Irrigation System, reported in 2003 WLC (Raj.) (UC) 750 as well as judgment of the Bombay High Court in Chandrakant Ghuse Vs. Vasantrao Zade & Ors., reported in 2008 CRI.L.J. 2122 to submit that the accused must be given an opportunity to put up his defence and for the said purpose, the witnesses can be summoned by the court. 4. Per contra, learned counsel appearing for respondent-complainant submits that there has been a deliberate delayed tactics adopted by the accused-petitioner and he has taken several opportunities even for the purpose of cross-examination of witnesses and the application moved is nothing but a method to delay the proceedings. 5. I have considered the submissions. Section 233 Cr.P.C. is reproduced as under: "(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. 5. I have considered the submissions. Section 233 Cr.P.C. is reproduced as under: "(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." 6. Section 254 Cr.P.C. is reproduced as under: "(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court." 7. Keeping in view the above, this court finds that accused has a right to apply for issuing process for compelling the attendance of any witness and at that stage, there is no reason required to be given except on the ground of causing delay or for vexatious proceedings whereof the court would reject such an application. 8. On perusal of the order passed by the trial court, this court finds that the trial court has not rejected the application on the ground of causing delay in the proceedings but only on the ground that specific reasons have not been mentioned in the application for calling the CA. 8. On perusal of the order passed by the trial court, this court finds that the trial court has not rejected the application on the ground of causing delay in the proceedings but only on the ground that specific reasons have not been mentioned in the application for calling the CA. While examining the application under Section 233 Cr.P.C., the court must look into overall circumstances and the statements which have come on record and if it finds that a relevant witness is being called for evidence in relation to the facts of the case, it must allow the same. In the facts as noticed above, the application ought to have been allowed but rejecting such an application has resulted in delay of proceedings because the order was passed on 11th January, 2019 and the case remained pending for almost one year. 9. It would be therefore well advised that trial court should take a pragmatic approach and decide the case with due application of mind so that unnecessary burden does not come on this court and at the same time on account of passing such kind of orders, the proceedings itself do not get delayed. This court has already settled the law in the judgments (supra) with regard to calling of witnesses and giving chance to the concerned accused for summoning of witnesses. However, the trial court has failed to take notice of the settled law resulting in delay of proceedings. 10. Accordingly, these petitions are allowed. The application moved by the accused is allowed. The Chartered Accountant would be summoned and the proceedings shall be completed expeditiously. The accused-petitioner shall cooperate and shall not be allowed to take unnecessary adjournments. 11. A copy of this order be placed in each connected file.