Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 23 (MP)

Deepak Gupta v. Vimlesh Goyal

2021-01-11

G.S.AHLUWALIA

body2021
ORDER 1. This application under section 482 of CrPC has been filed against the order dated 12.2.2019 passed by JMFC, Gwalior in Regular Criminal Trial No.1691/2017, by which the co-accused Ashutosh Sharma has been declared as absconding. 2. It is submitted by the counsel for the applicant that the respondent has filed a complaint under section 138 of Negotiable Instruments Act against A.S. Tractors and the applicant as well as Ashutosh Sharma have been impleaded as accused persons being the partner of A.S. Tractors, Sabalgarh District Morena. Although the applicant has entered his appearance, but Ashutosh Sharma who is close friend of the applicant is still absconding and without following due procedure, by the impugned order the co-accused Ashutosh Sharma has been declared as absconding. It is submitted that in case, if the applicant is tried in absence of co-accused, then there is a possibility that entire civil liability may be fastened on to the applicant. It is further submitted that as per the partnership deed, the applicant is not responsible for the misdeeds of the co-accused Ashutosh Sharma. 3. Heard the learned counsel for the applicant. 4. So far as the partnership deed, which has been placed on record by the applicant is concerned, the same cannot be considered in the light of the judgment passed by the ,upreme Court in the case of State of Orissa v. Debendra Nath Padhi reported in (2005) 1 SCC 568 . Partnership deed is a private document and is not a public document and thus, this Court cannot take judicial note of the same. It is for the applicant to prove the partnership deed before the trial Court. 5. Accordingly, this Court while exercising its power under section 482 of CrPC cannot look into the partnership deed to ascertain the liability of the applicant. 6. So far as the order dated 12.2.2019 is concerned, by the said order, co-accused Ashutosh Sharma has been declared as absconding. Counsel for the applicant could not point out any provision of law, according to which he can be said to be an aggrieved person. If the applicant is of the view that in absence of Ashutosh Sharma, he may be saddled with entire civil liability, even then the trial cannot be kept pending just for the purposes of appearance of co-accused Ashutosh Sharma. If the applicant is of the view that in absence of Ashutosh Sharma, he may be saddled with entire civil liability, even then the trial cannot be kept pending just for the purposes of appearance of co-accused Ashutosh Sharma. If one of co-accused is not appearing and has absconded, then the trial Court is left with no other option, but to declare such accused as absconding and then to proceed against those accused persons who are before the trial Court. 7. Complaint has been filed against AS Tractor, Sabalgarh. It is not the case of the applicant that he is not the partner of the said Firm. The main accused is a Firm and the applicant has been arrayed as an accused being the partner of the said Firm in the light of section 141 of Negotiable Instruments Act. However, it is clear from the disputed cheque that it also bears the signature of the applicant. Thus, it is clear that the applicant has been impleaded as an accused not only in the capacity of A.S. Tractors, but he is also one of the signatory of the cheque. 8. Be that as it may. 9. The trial Court did not commit any mistake in declaring the co-accused Ashutosh Sharma as absconding. Accordingly, no jurisdictional error was committed by the trial Court. Ex consequenti, the order dated 12.2.2019 passed by JMFC, Gwalior in Regular Criminal Trial No.1691/2017 is hereby affirmed. 10. Since the complaint was filed in the year 2017 and 4 long years have already passed, therefore, the trial Court is directed to proceed immediately in the matter and is directed to conclude the trial within a period of six months from the date of receipt of certified copy of this order. 11. Office is directed to immediately sent a copy of this order to the trial Court for necessary information and compliance. 12. With aforesaid observations, the application is finally disposed of. 13. The interim order dated 16.9.2019 is hereby vacated.