Deepak Gupta vs Smt. Vimlesh Goyal
2022 Latest Caselaw 497 MP

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           THE HIGH COURT OF MADHYA PRADESH
                     MCRC-38461-2019
             Deepak Gupta Vs. Smt. Vimlesh Goyal

                    Through video conferencing

Gwalior, Dated :. 11.01.2022

      Shri Anant Kumar Bansal, Counsel for the applicant.

      Shri M.S. Yadav, Counsel for the respondent.

This application under Section 482 of CrPC has been filed

against the order dated 12.02.2019 passed by JMFC, Gwalior in

Regular Criminal Trial No.1691/2017, by which the co-accused

Ashutosh Sharma has been declared as absconding.

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 onto 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.

THE HIGH COURT OF MADHYA PRADESH MCRC-38461-2019 Deepak Gupta Vs. Smt. Vimlesh Goyal

Heard the learned counsel for the applicant.

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 Supreme Court in the case

of State of Orissa Vs. 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.

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.

So far as the order dated 12.02.2019 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 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

THE HIGH COURT OF MADHYA PRADESH MCRC-38461-2019 Deepak Gupta Vs. Smt. Vimlesh Goyal

persons who are before the Trial Court.

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.

Be that as it may.

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 12.02.2019 passed by JMFC, Gwalior in

Regular Criminal Trial No.1691/2017 is hereby affirmed.

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.

Office is directed to immediately sent a copy of this order to

THE HIGH COURT OF MADHYA PRADESH MCRC-38461-2019 Deepak Gupta Vs. Smt. Vimlesh Goyal

the Trial Court for necessary information and compliance.

With aforesaid observations, the application is finally disposed

of.

The interim order dated 16.09.2019 is hereby vacated.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.01.12 15:44:40 +05'30'