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2005(1) Bankmann 428
RAJASTHAN HIGH COURT
H.R. Panwar, J.
M/s. Laxmi Steel
Industries — Appellant
versus
State & Anr. — Respondents
S.B. Criminal Leave to Appeal No. 143 of 2004
Decided on 3-9-2004
Counsel for the Parties:
For the Appellant:Mr. Dron Kaushik, Advocate.
For the State: Mr. Ashok Upadhayay, P.P.
For the Respondent No. 2:Mr. Pankaj Sharma, Advocate.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 256 and 378(4)—Dishonour of cheque—Non-appearance of complainant—Acquittal of accused—In spite of grant of several opportunities, complainant not produced any evidence—Last opportunity afforded to complainant to produce his witness on 7-1-2003—Neither complainant or his witness nor counsel present on the fixed day—No cause shown for non-appearance—Trial Court rightly closed the complainants’ evidence and as there was no evidence rightly acquitted the accused—Not a fit case to grant leave to appeal.
Facts of the case:
A)The appellants are the complainants in a case filed under Section 138 of Negotiable Instruments Act. Aggrieved by the order of acquittal of accused, appellants filed application for grant of leave to file criminal appeals.
B)The Court observed that the Magistrate has granted several opportunities to the complainant to produce his evidence. In spite of several opportunities, the complainant failed to produce his evidence and the last opportunity was afforded to produce witness by 7-1-2003. Even on the specified date, neither the complainant/his witness nor his counsel appeared and there was no material before trial Court to proceed any further in the matter. The Court held that there was no occasion for the Magistrate to adjourn the hearing in absence of complainant, his counsel and the witness and the trial Court was justified in acquitting the accused. In this view of the matter, it is not a fit case to grant leave to appeal to High Court. The application seeking leave to appeal rejected.
Result: Appeal dismissed.
H.R. Panwar, J.—Both these criminal leave to appeals arise out of disputes between the same parties and involve common questions of law and facts, therefore, with the consent of the learned counsel for the parties, the same have been heard together and are being decided by this common Order.
2. Both these criminal leave to appeals under Section 378(4) are directed against the Order dated 07.01.2003 passed by the Chief Judicial Magistrate, Hanumangarh (in short the “Trial Court” hereinafter) in Complaint Cases No. 141/01 and 140/01 respectively, whereby the Trial Court acquitted accused second respondent Surendra Pal Singh of the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short “the Act” hereinafter). Aggrieved by the Order of acquitted impugned, the complainant seeks leave to appeals to this Court.
3. I have heard learned counsel for the appellant and the learned counsel appearing for the accused second respondent. It was a complaint case by the private firm, therefore, learned public prosecutor nothing to say in the matter. I have carefully gone through the material placed on record.
4. The facts which are relevant and necessary are being taken from the Complaint Case No. 141/01 since the dates are almost common in both these cases.
5. Briefly stated the facts of the case are that the appellant filed a complaint under Section 138 of the Act on 22.2.2001 against second respondent Surendra Pal Singh inter alia alleging therein that the second respondent is running an account with the appellant firm and obtained loans from the appellant firm on different dates in terms of cash and goods. The second respondent issued a cheque No. 0163594 dated 15.1.2001 for a sum of Rs. 95,000/- in favour of the appellant firm. The cheque in question, on being presented to the bank on 15.1.2001 itself, was dishonoured for insufficient amount in the account of the accused second respondent. A notice, as envisaged under Section 138(b) of the Act, was issued on 27.1.2001 making a demand for payment of said amount of the cheque. The accused second respondent failed to pay the amount within 15 days from the receipt of the notice dated 27.1.2001, and, therefore, a complaint was filed by the appellant before the Trial Court under Section 138 of the Act. By Order dated 23.2.2001, the Trial Court took cognizance of the offence and summoned the accused second respondent. On 20.7.2001, the accused second respondent appeared before the Trial Court and was released on bail and the matter was fixed for framing of charge on 09.08.2001. On 09.08.2001 accused second respondent appeared, however, the complainant failed to appear, his personal appearance on that date was exempted on an application filed by the counsel for the appellant and the matter was posted to 21.11.2001 for framing of the charge. On 21.11.2001 also, the complainant failed to appear and his personal appearance was exempted on an application moved by his counsel. However, the accused second respondent was present on that date and the substance of charge was read over to him. The matter was posted for complainant’s evidence on 31.1.2002. On 31.1.2002 neither the complainant appeared nor any of his witness was present and the matter was posted to 26.3.2002 for complainant’s evidence. On 26.3.2002 also, the complainant failed to appear. However, on an application moved by his counsel, his personal appearance was exempted. The matter was posted for complainant’s evidence on 27.5.2002. On 27.5.2002 again, the complainant failed to appear. However, accused/second respondent was present and the matter was posted to 17.7.2002. On 17.7.2002 neither the complainant nor the accused second respondent appeared and on the applications of respective counsel for the parties, their personal appearance were exempted and the matter was posted to 12.9.2002. On 12.9.2002 also, the complainant and the accused second respondent did not appear and their personal appearance were exempted
