Punjab-Haryana High Court
Naresh Kumari Uppal vs Mohinder Singh Sanghera on 31 January, 2025
Neutral Citation No:=2025:PHHC:015752
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-765-MA-2015 (O&M)
Reserved on: 24.01.2025
Pronounced on: 31.01.2025
Naresh Kumari Uppal ...Applicant-Appellant
Versus
Mohinder Singh Sanghera ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: - Ms. Rakhi Sharma, Advocate
for the applicant-appellant.
Mr. Rajat Gaur, Advocate
for the respondent.
***
Harpreet Singh Brar, J. (Oral)
1. The present application is preferred under Section 378(4) of the
Cr.P.C. against the order of acquittal dated 09.01.2015 passed by learned
Judicial Magistrate Ist Class, Amritsar in criminal complaint bearing no.
26043/2011 dated 04.11.2011 filed under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter 'NI Act').
2. Briefly, the facts, as alleged, are that the respondent borrowed
some money from the applicant. In order to repay the same, he issued a cheque
bearing No.430331 dated 15.04.2011 for Rs.10,00,000/- in her favour.
However, on presentation for encashment, the same was dishonoured vide
memo dated 25.08.2011 with the remarks 'funds insufficient.' Accordingly, a
legal notice dated 16.09.2011 was issued. Since the respondent failed to make
the requisite payment in the stipulated time, the complaint (supra) was filed.
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3. Learned counsel for the applicant inter alia submits that the
learned Court below has fallen into grave error by acquitting the respondent
merely because the applicant did not turn up for cross-examination of CW.
The husband of the applicant, namely Ashwani Kumar Uppal, is the power of
attorney holder for the applicant and used to appear before the learned trial
Court on her behalf. He is a 55 year old man suffering from alcoholism, to the
extent that he has developed a liver disease. He has also been admitted to de-
addiction centre previously. Because of his ailment, he had sought exemption
from personal appearance on various occasions earlier as well. The absence of
Ashwani Kumar Uppal on 09.01.2015 was neither deliberate nor intentional.
Reliance in this regard is placed on the judgment rendered by the Hon'ble
Supreme Court in M/s BLS Infrastructure Limited vs. M/s Rajwant Singh
and others (2023) 4 SCC 326 and the Bombay High Court in M/s Sonam
Fianance Lease Co. Pvt. Ltd. vs. Vasant Singh Shankar Narayansingh and
another 2008(5) R.C.R.(Criminal) 443.
4. Per contra learned counsel for the respondent contends that the
absence of the applicant cannot be overlooked as it is a dilatory tactic aimed at
harassing the respondent-accused, who is a British citizen. The respondent has
had to travel at least 50 times in the last 10 years since complaint (supra) was
instituted. The applicant and her husband are habitual offenders with multiple
FIRs registered against them. Ample opportunities were bestowed on the
applicant and her husband by the learned trial Court, but for reasons best
known to them, they have failed to put in appearance. Reliance int his regard
is placed on S.P. Chengalvaraya Naidu vs. Jagannath AIR 1994 SC 853, G.S.
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Lamba vs. Union of India AIR 1985 SC 1019 and Bharatiya Seva Samajh
Trust vs. Yogeshbhai Ambalal Patel AIR 2012 SC 3285.
5. Having heard learned counsel for the parties and after perusing
the record with their able assistance, it appears that the complaint (supra) was
instituted on 04.11.2011 i.e. about 14 years ago. A perusal of the impugned
order indicates that the power of attorney holder of the applicant- i.e. her
husband namely Ashwani Kumar Uppal had a solitary absence on 09.01.2015,
resulting in acquittal of the respondent. The husband of the petitioner had also
sought exemption from personal appearance on various occasions in the past
due to his liver disease and de-addiction treatment from alcohol. The trial has
already reached the stage of cross-examination and prematurely ending the
same would not only diminish all the time and effort put towards the matter
but also defeat the interest of justice. Further, a two Judge bench of the
Hon'ble Supreme Court in Mohd. Azeem vs. A. Venkatesh and another
(2002) 7 SCC 726 has made the following observations:
"4. In our opinion, the learned Magistrate and the High Court
have adopted a very strict and unjust attitude resulting in failure
of justice. In our opinion, the learned Magistrate committed an
error in acquitting the accused only for absence of the
complainant on one day and refusing to restore the complaint
when sufficient cause for the absence was shown by the
complainant."
6. The complaint in the present case was filed in the year 2011 and
the witnesses have already deposed, since the trial is at the stage of cross-
examination. Especially in these circumstances, the Courts are required to
adopt pragmatic and practical approach and allow the trial to be concluded. A
hyper-technical approach would defeat the intention behind the statute, which
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is to provide swift relief. Furthermore, this Court is of the considered opinion
that, as far as possible, efforts must be made to ensure that the parties involved
are allowed to present the best available evidence as that would lend
credibility to the judicial proceedings. Denial of an opportunity, to present the
best available evidence or have an effective and substantial hearing, is in direct
violation of the right to free and fair trial enshrined under Article 21 of the
Constitution of India as well as the principles of natural justice.
7. Accordingly, in the interest of justice, impugned order dated
09.01.2015 passed by learned Judicial Magistrate Ist Class, Amritsar is set
aside and the present application is disposed of with the following directions:
(i) The matter is remanded back to the learned trial Court and
the complaint case is ordered to be restored to the same stage,
under the same number.
(ii) Further, the applicant be given two effective opportunities
to complete cross-examination.
8. However, in view of the fact that the respondent is a British
citizen and that he has been facing the agony of trial for about 13 years now,
his personal appearance shall remain exempted in view of the ratio laid down
by this Court in Suresh Kumar and another vs. The State of Haryana and
another 2023 (4) R.C.R.(Criminal) 304, subject to the following conditions:
The respondent shall:
(a) be represented through his counsel;
(b) not delay/stall the proceedings;
(c) not dispute his identity;
(d) have no objection if the prosecution evidence is recorded in
his absence but in the presence of his counsel;
(e) appear before the Court as and when required; and
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(f) abide by any other condition, which the Court below may
impose.
9. Pending miscellaneous application(s), if any, shall also stand
disposed of.
Reserved on : 24.01.2025 (HARPREET SINGH BRAR)
Pronounced on : 31.01.2025 JUDGE
manisha
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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