Rajasthan High Court
Radhey Shyam Sharma S/O Shri ... vs Divakar Sharma S/O Yagyadutt ... on 30 July, 2021
Bench: Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Leave To Appeal No. 495/2019
Radhey Shyam Sharma S/o Shri Surajmal Sharma, R/o 105,
Aastha Nagar, Tekhra Road, Borekheda, Kota Raj.
----Appellant/Complainant
Versus
Divakar Sharma S/o Yagyadutt Sharma, R/o Presently Working
As Lecturer, Technical University, Rawatbhata Road Kota Raj. R/o
House No. 304, Talwandi, Kota Raj.
----Respondent/Accused
For Appellant(s) : Mr. Nitranjan Singh
For Respondent(s) : Mr. Satish Chandra Mittal
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Order
30/07/2021
Challenge in the instant criminal leave to appeal filed
by the appellant-complainant under Section 378(4) of Cr.P.C. has
been made to the judgment dated 01.10.2019 passed by the
Court of Special Judicial Magistrate N.I. Act Cases No.4, Kota in
Regular Criminal Case No. 1420/2016 (Radhey Shyam Sharma vs.
Divakar Sharma) whereby the accused respondent was acquitted
from the offence under Section 138 of the N.I. Act.
Learned counsel for the complainant appellant submits
that the complainant in support of his complaint submitted an
affidavit under Section 200 of Cr.P.C. and other documents namely
original cheque, cheque deposit slip, cheque return memo, legal
notice, reply of notice and postal receipt. Counsel submits that the
complainant could not appear before the trial Court on subsequent
dates due to heart ailment as he was being treated at Kota Heart
(2 of 3) [CRLLA-495/2019]
Institute and Saket Hospital, Jaipur as well as at Holy Family
Hospital, Kota. Learned counsel submits that the complainant
moved an application before the trial Court for recording his
statement, along with an application for opening his evidence and
also an application under Section 91 Cr.P.C. The Court below
decided the aforesaid applications vide order dated 04.07.2019
whereby cost of Rs. 30,000/- was imposed. Thereafter, the
complainant could not appear before the trial Court on 04.09.2019
as he was suffering from heart ailment. Counsel submits that the
trial Court failed to appreciate that the presumption of guilt is
against the accused in the present case under Section 139 of the
N.I. Act. Counsel further submits that the accused gave a cheque
bearing No. 00026 dated 14.11.2014, HDFC Bank Branch Talwandi
Kota amounting to Rs. 7 lacs towards consideration to the
complainant as he sold his land to the accused through a
registered sale deed and the said cheque after dishonoured was
returned to the accused- respondent on 12.12.2014 with the
remarks of stop payment.
Per contra, learned counsel appearing for the accused
respondent submits that despite ample opportunities given to the
complainant, he did not appear before the trial Court as a result of
which the learned trial Court rightly closed his evidence vide order
dated 04.09.2019.
Heard learned counsel appearing for both the parties
and perused the material made available to the Court.
The complainant in support of his complaint submitted
an affidavit under Section 200 of Cr.P.C. and other documents
namely original cheque, cheque deposit slip, cheque return memo,
legal notice, reply of notice and postal receipt and the complainant
(3 of 3) [CRLLA-495/2019]
could not appear before the trial Court on subsequent dates due to
heart ailment as he was being treated at Kota Heart Institute and
Saket Hospital, Jaipur as well as at Holy Family Hospital, Kota. The
accused gave a cheque bearing No. 00026 dated 14.11.2014,
HDFC Bank Branch Talwandi Kota amounting to Rs. 7 lacs towards
consideration to the complainant as he sold his land to the
accused through a registered sale deed and the said cheque after
dishonoured was returned to the accused- respondent on
12.12.2014 with the remarks of stop payment.
Thus, in view of the facts and circumstances of the case
as also in the interest of justice, the order dated 01.10.2019
passed by the Court of Special Judicial Magistrate N.I. Act Cases
No.4, Kota is set aside and the trial Court is directed to proceed in
the matter on the stage and in terms of order dated 04.09.2019.
The instant criminal leave to appeal filed by the
appellant-complainant is disposed of.
Parties are directed to appear before the trial Court on
20.08.2021.
(GOVERDHAN BARDHAR),J
Ritu/7
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