Sh. S.K. Rana vs M/S Shiva Electrical Industries & ...
2023 Latest Caselaw 5645 HP

                                                                           .

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                             Cr. Revision No.516 of 2022





                                             Decided on: 11.05.2023

    Sh. S.K. Rana                                             ....Petitioner.

                      Versus




    M/s Shiva Electrical Industries & another .....Respondents.

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

    Whether approved for reporting?1

    For the petitioner :            M/s Varun Chandel and Panku Chaudhary,
                                    Advocates.

    For the respondents :           Ms. Leena Guleria, Advocate, for respondent



                                    No.1.
                                    None for respondent No.2.




    Ajay Mohan Goel, Judge (Oral)

By way of this petition, filed under Section 397 of the

Criminal Procedure Code, the petitioner has challenged order dated

17.09.2022, passed by learned Trial Court, in terms thereof, an

application filed under Section 328 and 329 of the Criminal

Procedure Code on behalf of the petitioner has been dismissed.

2. Having heard learned counsel for the parties and after

carefully gone through the impugned order as well as other

documents appended with the petition, this Court is of the

Whether reporters of the local papers may be allowed to see the judgment?

.

considered view that there is no infirmity or perversity in the order

which stands assailed by way of present petition.

3. In terms of the record, the petitioner is facing the

proceedings under Section 138 of the Negotiable Instruments Act.

After the recording of statement of the petitioner under Section 313

of the Criminal procedure Code, an application stood filed by him

under Section 328 read with Section 329 of the Criminal Procedure

Code that as the petitioner was suffering from dementia and thus

facing loss of memory and as he was not able to understand the

legal proceedings etc., therefore, the application be allowed and

necessary steps be taken in­consonance with the provisions of

Section 328 and 329 of the Criminal Procedure Code.

4. The application was resisted by the non­applicant/

complainant and in terms of the impugned order, this application

has been rejected by learned Trial Court.

5. As already observed hereinabove, this Court does not

finds any infirmity or perversity in the order that has been passed by

learned Trial Court, in terms whereof, the application was dismissed,

because learned Trial Court while rejecting the application has

returned the findings that though it was averred in the application

that the applicant was suffering from dementia etc. since the year

2020, yet this issue was never raised when the applicant/accused

.

appeared in the Court and his statement was recorded under

Section 313 of the Criminal Procedure Code which was much after

the year 2020. Learned Trial Court also held while dismissing the

application that the only original prescription slip filed by the

accused alongwith the application was relatable to the Doctor

prescribing psychological test for dementia and referring the accused

to Government Hospital for capacity assessment, but the applicant

had not produced any document pertaining to such test or capacity

assessment, therefore, it could be easily presumed that the applicant

has not undergone any such test/capacity assessment, which leads

to the conclusion that the prescription slip appeared to be procured

and the intent of the applicant was to delay the adjudication of the

proceedings initiated under Section 138 of the Negotiable

Instruments Act.

6. During the hearing of the present petition, learned

counsel for petitioner could not demonstrate that these findings were

perverse findings as nothing has been produced on record to prove

that in fact in terms of the advice of the Doctor, any psychological

test for dementia was undertaken by the accused or he had

undergone any test with regard to capacity assessment and reports

were produced before learned Trial Court, which were ignored by

learned Trial Court while dismissing the application.

.

7. Accordingly, in view of the above findings, as this Court

does not finds any merit in the present petition, the same is

dismissed.

8. At this stage, learned counsel for the petitioner submits

that the adjudication in this petition may not come in the way of the

petitioner in filing a fresh petition before learned Trial Court as his

mental condition has really deteriorated. All that this Court can

observe is that in case any such application is filed by the petitioner

before learned Trial Court, then of course learned Trial Court shall

take a call upon it on its own merit.

9. Pending miscellaneous application, stand disposed of.

(Ajay Mohan Goel)

Judge May 11, 2023 (Rishi)