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2019 Supreme(Raj) 2197
IN THE HIGH COURT OF RAJASTHAN
Kanwaljit Singh Ahluwalia, J.
Balwant Singh, Subhash And Company And Another - Appellant
Versus
State Of Rajasthan, Through P.P. And Another - Respondent
Criminal Miscellaneous (Petition) No. 6659 of 2017 Connected With Criminal Miscellaneous (Petition) Nos. 6660, 6661, 6662, 6663 of 2017
Decided On : 28-02-2019
Mr. Sunil Sharma, Advocate, for the Appellants; Mr. Yuvraj Samant, Advocate. For the State:- Mr. Prakash Thakuriya, P.P, for the Respondents
A complainant can be exempted from personal appearance before the trial Court in exceptional circumstances, such as when the complainant is unable to appear due to being named as an accused in another case and subject to conditions imposed by the court.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - COMPLAINT - TRANSFER OF CASE - APPEARANCE OF COMPLAINANT - EXEMPTION - CONDITIONS - RECORDING OF EVIDENCE BY LOCAL COMMISSIONER - DIRECTIONS.
Fact of the Case:
The complainant filed five complaints against the petitioners for commission of offence punishable under Section 138 of the Negotiable Instruments Act, as the cheques issued by the petitioners, on presentation had bounced. The petitioners contended that the complaint was transferred from Karnal (Haryana) to Jaipur and that the complainant had not appeared before the trial Court despite multiple adjournments.
Finding of the Court:
The court noted that the complainant was named as an accused in a case arising out of an FIR registered at Police Station Anti Corruption Bureau, Jaipur and that the Supreme Court had granted him bail subject to certain conditions, including that he remain outside the State of Rajasthan.
Issues: Whether the complainant could be exempted from personal appearance before the trial Court in view of the Supreme Court order.
Ratio Decidendi: The court held that the complainant could be exempted from personal appearance before the trial Court, subject to certain conditions, including that he file an undertaking that he would appear before the Court at the time of framing of charges, recording of statement under Section 313 Cr.P.C., and at the time of delivery of the judgment, and that the evidence of witnesses recorded in his absence but in the presence of his Counsel would be binding upon him.
Final Decision: The court appointed a Local Commissioner to record the statement of the complainant in Delhi, and directed that the evidence of the complainant and his witnesses be recorded in his absence but in the presence of his Counsel.
JUDGMENT
1. By this common order, five petitions i.e. S.B. Criminal Miscellaneous (Petition) Nos. 6659/2017, 6660/2017, 6661/2017, 6662/2017 & 6663/2017 respectively between the same parties shall be decided together.
2. Shailendra Garg, the complainant/respondent No. 2 has instituted five complaints against the petitioners for commission of offence punishable under Section 138 of the Negotiable Instruments Act, as the cheques issued by the petitioners, on presentation had bounced.
3. This Court noticing contentions of the petitioners on 23.10.2018 had passed the following order:-
"The learned counsel appearing for the petitioners contends that the complaint under Section 138 of the Negotiable Instruments Act was transferred from Karnal (Haryana) to the Court at Jaipur. Counsel further contends that on last eight dates the petitioners are continuously appearing before the trial Court but the complainant has not yet appeared before the trial Court and the case is being unnecessarily adjourned. Counsel submits that the application filed by the petitioners under Section 256 CR.P.C. has been dismissed by the trial Court without issuing a notice upon the complainant.
Issue notice to the respondent/complainant, for 09.01.2019.
Till then, the personal appearance of the petitioners before the trial Court shall remain exempted subject to condition that the petitioners shall file an undertaking that as and when the complainant appear before the trial Court, on the next date, they shall also continue to appear before the trial Court.
Let a copy of this order be placed in the connected petitions."
4. Today, Mr. Yuvraj Samant, Advocate has caused appearance on behalf of Shailendra Garg, respondent/complainant No. 2.
5. The learned counsel appearing for complainant/respondent No. 2 has submitted, at Bar, that Shailendra Garg, complainant/ respondent No. 2 has been named as an accused in a case arising out of F.I.R. No. 422/2014 registered at Police Station Anti Corruption Bureau, Jaipur.
6. In Special Leave to Appeal (Criminal) No. 8958/2016, titled as Shailendra Garg v. State of Rajasthan , decided on 02.05.2017, the Supreme Court passed the following order:-
"We have heard Mr. Brijender Chahar, learned Senior Counsel appearing for the petitioner and Mr. Shiv Mangal Sharma, learned AAG appearing for the respondent-State of Rajasthan.
For the grounds stated in the Special Leave Petition, the petitioner is directed to be released on bail, subject to the following conditions:-
1. The petitioner shall furnish bail bonds in the sum of Rs. 25,000/- (Twenty Five Thousands Only) with two sureties each of the like amount to the satisfaction of the trial Court.
2. The petitioner, during the pendency of the investigation of FIR No. 422 of 2014, shall remain outside the State of Rajasthan.
3. The petitioner shall surrender his passport in the concerned trial Court and do not leave the country.
4. The petitioner shall not interfere in the ongoing investigation.
5. The petitioner shall make himself available as and when the Investigation Officer and the concerned court required his presence for investigation/Trial.
6. The petitioner shall produce his latest and full residential address in the concerned Trial Court while obtaining bail and shall not change his address without the prior permission of the Court.
In the event of necessity of any further condition (s), depending on the attendant facts and circumstances, it would be open for the concerned trial court to prescribe the same.
In case of any breach of the conditions, this Court, on being informed thereof, would, if inclined, initiate suo-motu steps for cancellation of the bail, which is hereby granted.
The Special Leave Petition is disposed of in the afore-stated terms."
7. Counsel appearing for the complainant/respondent No. 2 contends that in view of the order passed by the Supreme Court, the complainant is unable to appear in the Courts at Jaipur.
8. After hearing ld. counsel appearing for the parties, the present p
