Prakash Khatri S/O Late Shriji Lal ... vs State Of Rajasthan
2021 Latest Caselaw 2085 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

        S.B. Criminal Miscellaneous (Petition) No. 7091/2019

Prakash Khatri S/o Late Shriji Lal Khatri, Prop./owner Jay
Prakash Hospitality Services Pvt. Ltd., Address D-15, Hari Nagar,
Shastri Nagar, Jaipur, Presently R/o Legs Store, Opp. D-7,
Basement, Gaurav Tower, Malviya Nagar, Jaipur.
                                                         ----Accused/Petitioner
                                    Versus
1.       State of Rajasthan, through PP
                                                                      Respondent

2. Smt. Deepa Mathur W/o Umesh Mathur R/o 191/22A, Pratap Nagar, Tonk Road, Jaipur, Police Station Pratap Nagar, Jaipur Metropolitan, Jaipur.

----Complainant/Respondent

For Petitioner(s) : Mr. Manvendra Singh Shekhawat with Mr. Gaurav Srivastava For Respondent(s) : Mr. Prashant Sharma, P.P.

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

25/02/2021

This criminal miscellaneous petition under Section 482 CrPC

has been filed for quashing the order dated 23.09.2019 passed by

the Court of learned Special Metropolitan Magistrate (N.I. Act

Cases) No.2, Jaipur Metropolitan, Jaipur whereby, the learned trial

Court has declined to issue fresh process for summoning the

defence witness and permitted the petitioner/accused to produce

him on his own, if he so desires.

Assailing the order impugned, learned counsel submitted

that once the learned trial Court has issued process for

summoning the witness under Section 204 CrPC, it could not have

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reviewed its order and declined to issue fresh process to secure

his presence. He submitted that Section 362 CrPC prohibited such

order on the part of the learned trial Court. Learned counsel relied

upon the judgment of the Hon'ble Apex Court of India in case of

Devendra Kishanlal Dagalia versus Dwarkesh Diamonds

Pvt. Ltd. & Ors., AIR 2014 Supreme Court 655 in support of

his submission. He, therefore, prayed that the order impugned

dated 23.09.2019 be quashed and set aside.

Heard learned counsel for the petitioner and perused the

record.

The proceedings before the learned Court below are pending

under Section 138 of the Negotiable Instruments Act, 1881 (for

brevity "the Act of 1881"). After closure of the evidence of the

complainant, on request made by the accused, the learned trial

Court summoned the defence witness namely Manoj Somani vide

its order dated 22.09.2017. When despite service of summon, the

witness did not appear, bailable warrant as well as non bailable

warrant was issued to secure his presence. The arrest warrant

issued on 03.06.2019 was returned with the report that wife of

the witness has informed that the witness was unavailable at

home. Thereafter also, despite repeated efforts to secure presence

of the defendant's witness through arrest warrant, he did not

appear. Recording a categorical and unchallenged finding that the

defence witness was relative of the petitioner, the learned trial

Court declined to issue fresh process to secure his presence;

however, the petitioner was permitted to examine him on his own,

if he so desires. The proceeding under Section 138 of the Act of

1881 was delayed by about two years awaiting examination of the

defence witness. In considered opinion of this Court, the learned

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trial Court has committed no error in passing the order dated

23.09.2019. The contention of the learned counsel for the

petitioner placing reliance on provisions of Section 204 CrPC as

well as Section 362 CrPC are wholly misconceived. The order

impugned, by no stretch of imagination, can amount to review of

the order dated 22.09.2017. The judgment of the Hon'ble Apex

Court of India in case of Devendra Kishanlal Dagalia (supra)

has no applicability in the present case. In that case, the learned

trial Court after recording the pre-summoning evidence issued

summons on the accused under Section 204 CrPC and thereafter,

recalled its order on an application filed by accused persons under

Section 201 CrPC. In those circumstances, the Hon'ble Apex Court

of India held the order to be hit by provisions of Section 362 CrPC.

In these circumstances, this criminal miscellaneous petition

is dismissed being devoid of merit with cost of ₹1,500/- to be

deposited by the petitioner with the Rajasthan Legal Services

Authority, Rajasthan High Court, Jaipur within a period of seven

days.

(MAHENDAR KUMAR GOYAL),J

Manish/57

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