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2022 DIGILAW 572 (RAJ)

Parasmal v. State Of Rajasthan

2022-02-17

VIJAY BISHNOI

body2022
JUDGMENT Vijay Bishnoi, J. - This criminal writ petition has been filed by the petitioner with a prayer to quash and set aside the order dated 28.02.2011 (Annex. 3) passed by the Additional District and Sessions Judge (Fast Track), Balotra in Criminal Appeal No. 22/2010 and further to quash the judgment dated 01.08.2016 (Annex. 4) passed by the Judicial Magistrate, Banner in Criminal Case No. 447/2007. 2. Brief facts of the case are that the respondent No. 2 has filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act. The said complaint came to be dismissed by the Judicial Magistrate, Banner vide judgment dated 03.06.2010 in Criminal Case No. 444/2007 and the petitioner was acquitted. 3. Being aggrieved with the same, the respondent No. 2 has filed an appeal in the Court of the Additional Sessions Judge (Fast Track), Balotra and the said Appeal No. 22/2010 came to be allowed and the judgment dated 03.06.2010 passed by the Judicial Magistrate, Banner in Criminal Case No. 444/2007 was set aside and the matter was remanded to that Court for fresh adjudication. 4. The Judicial Magistrate, Banner vide judgment dated 01.08.2016 (Annex.4) had convicted the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him accordingly. Against the judgment dated 01.08.2016 (Annex.4) passed by the Judicial Magistrate, Banner, the petitioner has preferred an appeal, which is pending consideration in the Court of Additional District Judge, Banner. 5. The petitioner has filed this writ petition mainly on the ground that the Additional Sessions Judge, Balotra has illegally entertained the Criminal Appeal No. 22/2010 preferred on behalf of the respondent No. 2 as the criminal appeal preferred by the respondent No. 2 was not maintainable because as per Section 378(4) Cr.P.C., the complainant could have filed special leave to appeal and not appeal before the Additional Sessions Judge (Fast Track), Balotra. 6. The learned Counsel has submitted that as the respondent No. 2 has preferred direct appeal which was not at all maintainable and as such the judgment passed by the Additional Sessions Judge (Fast Track), Balotra on 28th February, 2011 of setting aside the acquittal of the petitioner by the Trial Court and to remand the matter to it was void ab initio. It is submitted that as the said order was void ab initio, the judgment passed by the Judicial Magistrate, Barmer dated 01.08.2016 convicting and sentencing the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act is also liable to be set aside. 7. Having heard learned Counsel for the petitioner and after going through the material available on record, I am of the opinion that the above argument advanced by the learned Counsel for the petitioner cannot be taken into consideration while exercising powers under Article 226 of the Constitution of India. 8. It is noticed that against the conviction and sentence order passed by the Trial Court, the petitioner has already preferred a statutory appeal which is pending consideration and in such circumstances, I do not find any reason to entertain this petition seeking relief of quashing the conviction and sentence order passed by the Trial Court. The petitioner can very well raise this point before the Additional Sessions Judge (Fast Track), Balotra. 9. I am of the opinion that any judgment passed by a Competent Criminal Court after trial cannot be set aside by the High Court while exercising jurisdiction under Article 226 of the Constitution of India when the provisions of statutory appeal are there. 10. In view of the above discussion, this writ petition is dismissed with costs of Rs. 2,000/-, which shall be deposited by the petitioner with the Legal Services Authority, Jodhpur within a period of two months, failing which, the Legal Services Authority, Jodhpur shall inform this Court about non-payment of the said cost.