Dinesh Raghuwanshi vs Madan Ahirwar
2023 Latest Caselaw 5274 MP

                                  1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                            BEFORE
             HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                     ON THE 29 th OF MARCH, 2023
               MISC. CRIMINAL CASE No. 34484 of 2022

BETWEEN:-
DINESH RAGHUWANSHI S/O RAGHURAJ SINGH
RAGHUWANSHI, AGED ABOUT 42 YEARS, OCCUPATION:
BUSINESS SITARAM COLONY GUNA (MADHYA
PRADESH)

                                                               .....APPLICANT
(BY SHRI RAJNISH SHARMA - ADVOCATE)

AND
MADAN AHIRWAR S/O HARNAM AHIRWAR VILLAGE
JAMRA POST JAMRA, DISTRICT GUNA (MADHYA
PRADESH)

                                                             .....RESPONDENT
(NONE)

      This application coming on for admission this day, the court passed the
following:
                                   ORDER

The present petition has been filed seeking leave to appeal against the order / judgment dated 26.04.2022 passed by the Court of learned JMFC Guna in Crime Case No.269/2017 which was dismissed for want of prosecution and acquitted the respondent /accused for the offence under Section 138 of Negotiable Instruments Act.

The impugned order is dated 26.04.2022. The record of the trial Court has been received. After having gone through the said order, it appears that on that date, the complainant was not present before the learned Trial Court and

neither was his counsel. It was listed for evidence of complainant / petitioner herein. The Court waited for the whole day for appearance of the petitioner thereafter, at 04:55 pm, the learned trial Court passed the impugned order. Learned Trial Court has also recorded the facts that the case has been pending before the trial Court at the stage of complainant evidence since 04.04.2018. Record of the proceedings go to show that consistently for 4 years on date after date before the trial Court, it was the petitioner / complainant who was taking time from the trial Court to lead his evidence but never did so. There were two occasions which of-course could not be laid at the door step of the petitioner which is 05.08.2021 and 09.11.2021 which is during the Covid period

and trial Court has recorded the said fact while giving the next date. Otherwise, the previous order go to show that consistently it was the petitioner who was seeking time from the trial Court to lead his evidence for 4 years.

Learned counsel for the petitioner submits that the petitioner had taken his wife for treatment to Bhopal and that he is permanent resident of Guna and the case was also at Guna. He said on account of treatment of his wife, he could not appear before the trial Court and therefore, the present petition be allowed and matter be remanded to the trial Court with cost. The so called treatment papers of the wife of the petitioner are at Page No.12 to 15 of the petition. All the documents reflect that there were certain tests that were conducted on the wife of the petitioner and all those tests were conducted on 23.04.2022. The echo-cardiograph report of the wife of the petitioner reveals that she was absolutely normal without any kind of abnormality or adverse finding in her health. The complaint of the wife of the petitioner was of palpitation and an anxiety for which certain medicines were also prescribed on 23.04.2022 itself. There is no documents placed by the petitioner which could

reveal that wife of the petitioner had to be hospitalized and had to remain in Bhopal beyond 23.04.2023. In fact, the documents do not even show that she was ever admitted. Thus, the contention of the counsel for the petitioner that he could not appear before the trial Court on 26.04.2022 has to be rejected as the petitioner had 3 days to appear before the learned Trial Court and give his evidence. However, he does not even instruct his counsel to move an appropriate application to seek an adjournment on the ground of treatment of his wife. Learned counsel for the petitioner also submits that petition be allowed after imposing cost as otherwise a valuable right of the petitioner under the Negotiable Instrument Act would be infracted. This Court begs to defer. The complainant had 4 years to lead evidence. The impugned order cannot be viewed in isolation but the previous orders passed by the learned trial Court which consistently reveal that time was being taken by the petitioner/ complainant to lead evidence which went on for 4 years going to show the conduct of the petitioner that his intention was to delay the trial and harass the respondent as much as possible, must also be taken into account. Therefore, the Court rejects the request of counsel for the petitioner. There is no infirmity with the impugned order passed by the learned Court below therefore, this petition is dismissed.

(ATUL SREEDHARAN) JUDGE Ashish*

ASHISH Digitally signed by ASHISH CHAURASIA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,

CHAUR 2.5.4.20=bf81a9adb1da24e4bc7b51951 54c3d4de08c6bb9303e52e2e7e728d9b ac85bd3, pseudonym=CA2EA6EDDF504F8F9C27 90FA9A0FD201D0242B64,

ASIA serialNumber=A926F3CBF979ECA6A4C 477577EEDBA3AB4F94593A930B98DAE 1B0AD16F90B5FD, cn=ASHISH CHAURASIA Date: 2023.03.29 19:13:05 -07'00'