Virendra Baheti vs Balusingh Rajpurohit
2021 Latest Caselaw 12738 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Crml Leave To Appeal No. 343/2018

Virendra Baheti S/o Sh. Dwarka Das Baheti, Aged About 50 Years, Proprietor Of Sushil Tyres, Near Idbi Bank , Chopasni Road, Jodhpur

----Appellant Versus Balusingh Rajpurohit, Proprietor Of Rajpurohit Construction Company , R/o Rishi Bhawan 11/642, Chb , Distt Jodhpur

----Respondent Connected With

S.B. Crml Leave To Appeal No. 341/2018

Virendra Baheti S/o Sh. Dwarka Das Baheti, Aged About 50 Years, Proprietor Of Sushil Tyres, Near Idbi Bank, Chopasni Road, Jodhpur.

----Appellant Versus Balusingh Rajpurohit, Proprietor Of Rajpurohit Construction Company, R/o Rishi Bhawan 11/642, Chb, Dist. Jodhpur.

----Respondent S.B. Crml Leave To Appeal No. 342/2018 Virendra Baheti S/o Sh. Dwarka Das Baheti, Aged About 50 Years, B/c Bheel, Residents Of Haddi Mill, Nearby Maszid, Basni Police Station, Jodhpur, Dist. Jodhpur Metro. (Lodged In Central Jail, Jodhpur)

----Appellant Versus Balusingh Rajpurohit, Proprietor Of Rajpurohit Construction Company, R/o Rishi Bhawan 11/642, Chb, Dist. Jodhpur

----Respondent

For Appellant(s) : Mr Akshay Surana For Respondent(s) : Mr Narendra Thanvi

(2 of 3) [CRLLA-343/2018]

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment / Order

13/08/2021

Heard learned counsel for the parties and perused the

impugned orders dated 01.09.2018.

Learned counsel for the appellant submits that it is settled

principle of law that the party should not be made to suffer on

account of any negligence on the part of his counsel.

Learned counsel for appellant submitted that in these

matters, the date was fixed as 07.10.2017 for appearance of the

respondent-accused. The respondent-accused submitted bail

bonds, which were accepted by the court below. Thereafter, the

matter was referred for mediation and after failure of the same,

the matter was listed before the court for appropriate order.

However, due to lack of communication with the counsel, the

complainant-appellant could not appear for evidence and the next

date was not in knowledge of the appellant. The learned court

below, however, dismissed complaint of the appellant for non-

prosecution vide impugned orders dated 01.09.2018. Under

Sec.139 of the NI Act presumption of commission of offence lies in

favour of the complainant. Learned counsel submitted that in the

interest of justice, the impugned orders may be set aside and the

complaint cases filed by the appellant may be restored at their

original numbers.

Learned counsel for the respondent submitted that on three

occasions, the complainant-appellant did not appear nor his

counsel was present in the court, the trial court has rightly passed

the orders of acquittal for want or prosecution under Section 256

CrPC and no interference is warranted.

(3 of 3) [CRLLA-343/2018]

Perused the material placed before the court below.

The above complaints were filed on the ground that the

respondent issued cheques to the appellant, which were presented

in Bank for encashment but the same were returned dishonoured

with the remark "Funds Insufficient". Thereupon, after necessary

compliance under law, the appellant filed complaints under Section

138 of the Negotiable Instruments Act.

The appellant-complainant served registered notice dated

25.04.2017 to the respondent prior to the complaint under Section

138 NI Act and it does not reflect on record that the respondent-

accused has controverted the facts alleged in the legal notice.

Taking note of the over-all facts and circumstances of the

case, in the interest of justice the impugned orders dated

01.09.2018 passed by learned Special Judge, NI Act Cases,

Jodhpur Metropolitan in Cr. Case No.2976/2017, Cr. Case

No.2977/2017 and Cr. Case No.2978/2017 are set aside and the

complaints filed under Sec.138 NI Act by the appellants are

ordered to be restored at their original numbers, subject to

payment of cost of Rs.7500/- by the appellant in each matter.

On payment of cost by the appellant, trial court is directed to

proceed further in aforesaid complaints cases from the stage the

same were pending on the date of dismissal i.e. 01.09.2018.

These Leave to Appeal are accepted accordingly and the

appeals stand disposed of as aforesaid. Record of the court below

be sent back forthwith.

(GOVERDHAN BARDHAR),J

5, 6, 7-MMA/-

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