Punjab-Haryana High Court
Rajender Kumar vs Dharamvir Jyani on 6 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:107359
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
201-1 CRM-A-433-MA-2013
Date of Decision: 06.08.2024
Rajender Kumar ......... Appellant.
Versus
Dharamvir Jyani ......... Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Pankaj Maini, Advocate
for the applicant.
Mr. Sushil Sheoran, Advocate
for the respondent.
****
ANOOP CHITKARA, J. (ORAL)
1. I have heard counsel for the par$es and gone through the record.
2. The pe$$oner had filed a complaint under Sec$on 138 of NI Act read with Sec$on
420 IPC before the Illaqa Magistrate. The grounds for the said complaint were that a
cheque for an amount of Rs.50,000/- was issued on account of a private debt but the same
was bounced because of payment stopped by the drawer. A5er that, a legal no$ce dated
27.08.2005 was issued for making payment but the respondent/accused instead of making
payment sent reply dated 06.09.2005 to the legal no$ce through his counsel and denied
any such payment. A5er that, the pe$$oner filed the above men$oned complaint on
19.09.2005.
3. The pe$$oner led preliminary evidence and based on which accused/respondent
was summoned and no$ce of accusa$on was issued on 26.04.2006 to which the accused
denied guilty and pleaded innocence. Subsequently, the evidence started and complainant
examined himself as PW-1 and has tendered his affidavit as Ex. PW-1/A in examina$on-in-
chief. He also tendered the following documents:
Ex.P1 Memo of the banker of accused dated 23.08.2005
Ex.P2 Original cheque dated 20.08.2005
Ex.P3 Legal no#ce dated 27.08.2005
Ex.P4 Postal receipt.
Ex.P5 Reply dated 06.09.2005 to the legal no#ce.
Ex.P6 Copy of income tax return for the year 2001-02.
Ex.P7 Copy of income tax return for the year 2002-03.
Ex.P8 Copy of income tax return for the year 2003-04.
1 of 4
Neutral Citation No:=2024:PHHC:107359
Ex.P9 Copy of income tax return for the year 2005-06.
Ex.P10 Copy of income tax return for the year 2004-05.
Ex.P11 Copy of pass book of complainant with SBI.
Ex.P12 Photocopy of sale deed allegedly purchased by Smt. Lajwan# to accused.
4. Therea5er, evidence of the complainant was closed.
5. The respondent/accused in statement under Sec$on 313 CrPC claimed innocence
and pleaded false implica$on and also led defence evidence. The accused in his defence
had examined Sh. Dharmender Siwach, the Handwri$ng Expert as DW-1, he also tendered
his affidavit as Ex.DW1/A in examina$on in chief. He proved and placed on record his
report as Ex.DW1/B, photographs as Ex.DW1/C-1 to Ex. DW1/C-20 and compact disk as
Ex.DW1/D to show false implica$ons. A5er analysing the evidence, the trial Court
considered the defence version that accused had never taken any loan from the
complainant and the cheque was lost which was grabbed by the complainant and his
father, who misused the same. The trial Court referred to the statement of Hand Wri$ng
Expert DW-1 Sh. Dharmender Siwach, who stated that the hand wri$ng on the cheque did
not belong to the accused, rather, it was of somebody else. The Court also took into
considera$on that the payment was stopped which would corroborate the loss of cheque,
in fact, the trial Court referred to the counter claim of the complainant that if cheque was
lost, the accused would have filed some FIR or complaint but nothing was done. The trial
Court referred Sec$on 118 to NI Act and also evidence. The trial Court was of the opinion
that there were mul$ple loans and if one loan had defaulted, then there was no reason for
the complainant to give any other loans, therefore, did not believe the complainant's
version. The trial Court also referred the complainant's income capacity to advance such
loans to correspond the other cheque cases and concluded that the accused was able to
create a doubt in the complaint, as such, dismissed the same.
6. Feeling aggrieved, the complainant filed an appeal before the Sessions Court, Hisar.
Vide impugned judgment dated 03.05.2012, the Sessions Court accepted the appeal and
remanded the maBer before the trial Court for disposal fresh by referring the judicial
pronouncement in (2011) 9 SCC 638 Ni nbhai Saeva lal Shah & Another Vs. Manubhai
Manjibhai Panchal & another and observed in para 3, which reads as follows:
"3. Hon'ble Supreme Court in (2011) 9 SCC 638 Ni#nbhai Saeva#lal Shah
& Another Vs. Manubhai Manjibhai Panchal & Another has held that in
case of summary trials, a Magistrate cannot proceed with the trial
placing reliance on the evidence recorded by his predecessor and he has
to try the case denovo a<er taking over the charge. It has been further
held that once a magistrate is not empowered to proceed with the trial
on the basis of evidence recorded by his predecessor in view of embargo
contained in sec#on 326 (3) CRPC, this defect is not merely an
2 of 4
Neutral Citation No:=2024:PHHC:107359
irregularity and is an illegality and convic#on of the accused was set
aside and case was remanded for a decision afresh a<er holding denovo
trial."
7. When the maBer was listed a5er remand, the trial Court dismissed the complaint
on 28.05.2013 for want of evidence. It would be appropriate to refer said order, which
reads as follows:
"Today, was last opportunity afforded to the complainant to conclude
his side of evidence, with a warning that in case, he failed to do so, his
evidence will be deemed to be closed. However, the complainant failed
to even appear in the Court for his evidence and preferred to move an
Applica#on for his exemp#on on the ground, that his right foot had
been fractured and was unable to move or walk properly, though no
Medical Cer#ficate to corroborate his version had been aAached.
2- Since, the complaint pertained to the year 2005 and had been
enlisted in the Ac#on Plan/Samadhan Cases 2013-14, there was no
room for any laxity from any quarter. It is per#nent to men#on, that the
complaint in hand had been remanded back vide order dated 3.5.2012
of Sh. Y. S. Rathore, learned Addl. Sessions Judge, Hisar for decision,
afresh by holding a de novo trial. Accordingly, No#ce of accusa#on had
been served afresh, upon the accused Sh. Dharamvir Jyani, on
12.6.2012 and the complainant was given more than sufficient,
effec#ve opportuni#es to adduce evidence on almost ten dates of
hearing (including today), but not even a single witness had been
examined on his behalf, #ll date.
3- Although, an affidavit of the complainant Sh. Rajender had been
placed on file on 15.2.2013, the adjournments therea<er were
requested from both the sides on one ground or the other, due to which
his affidavit could not be tendered in evidence, what to talk of cross-
examina#on. Even to appear today, the complainant did not bother to
appear, despite specific direc#on/warning(s). His father (present in the
Court) had been also directed to ask his son (complainant) to record
evidence today, but he expressed his inability.
4- Since, this Court being a Criminal Court was bound by its order
passed on the last date of hearing i.e. 14.5.2013, as such is constrained
to close the evidence of the complainant by order. Accordingly, his
Applica#on for personal exemp#on also stands declined on the
aforesaid grounds.
5- Therefore, the complaint is hand is hereby Dismissed for want of
evidence. Accused Sh. Dharamvir Jyan# is accordingly, acquiAed of the
3 of 4
Neutral Citation No:=2024:PHHC:107359
No#ce of Accusa#on served upon him. His bail bonds and surety bonds
also stands discharged. File be consigned to the Record Room a<er due
compliance."
8. Challenging the above said order, the pe$$oner came up before this Court
by filing the present leave to appeal in the year 2013.
9. A perusal of the order sheets reveals that a co-ordinate Bench of this
Court had issued no$ce in leave to appeal on 05.09.2014. The maBer is struck up
at the same stage. The grounds taken by the complainant in the present leave to
appeal are that loan was genuinely given and story of complainant regarding
the5 of cheque is totally false and incorrect. He further submits that the
applicant could not lead his evidence because he is handicapped person with
100% disability. The applica$on for exemp$on from personal appearance was
also moved which was declined. However, perusal of the appeal does not refer to
any such document to corroborate pe$$oner's ill health or the applica$on for
exemp$on having been moved. In fact, the reason for which the complaint was
dismissed was lack of evidence.
10. Needless to say that the pe$$oner cannot be blamed for the delay
because the substan$al delay never occurred. It is the cumbersome procedure
and technicali$es which led to remand of the maBer for which the complainant
cannot be blamed at all by any stretch of imagina$on. However, although there is
a presump$on under Sec$on 118 of NI Act in favour of the complainant but that
presump$on is subject to the ini$al proof and the trial Court was jus$fied in
holding that the complainant did not lead the evidence in the terms of the
remand of the trial by Sessions Court. Hence, this court does not find any
illegality in the impugned order and no interference is called for.
11. Given above, leave to appeal dismissed. All pending miscellaneous applica$ons, if
any, stand disposed of.
(ANOOP CHITKARA)
06.08.2024 JUDGE
jyo0-II
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No.
4 of 4
