Parasmal vs State Of Rajasthan
2022 Latest Caselaw 2736 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Writ Petition No. 459/2021

Parasmal S/o Shri Khimraj Ji, Aged About 61 Years, B/c Oswal, R/o Moksh Marg, Behind Vidhyapeeth, Barmer.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Lalit Kumar S/o Prakash Chand, B/c Oswal, R/o Barmer.

----Respondents

For Petitioner(s) : Mr. Laxman Singh Bhati For Respondent(s) : Mr. Mool Singh Bhati, P.P.

HON'BLE MR. JUSTICE VIJAY BISHNOI

Order

17/02/2022

This criminal writ petition has been filed by the petitioner

with a prayer to quash and set aside the order dated 28.02.2011

(Annex.3) passed by the Additional District and Sessions Judge

(Fast Track), Balotra in Criminal Appeal No.22/2010 and further to

quash the judgment dated 01.08.2016 (Annex.4) passed by the

Judicial Magistrate, Barmer in Criminal Case No.447/2007.

Brief facts of the case are that the respondent No.2 has filed

a complaint against the petitioner under Section 138 of the

Negotiable Instruments Act. The said complaint came to be

dismissed by the Judicial Magistrate, Barmer vide judgment dated

03.06.2010 in Criminal Case No.444/2007 and the petitioner was

acquitted.

Being aggrieved with the same, the respondent No.2 has

filed an appeal in the Court of the Additional Sessions Judge (Fast

(2 of 3) [CRLW-459/2021]

Track), Balotra and the said appeal No.22/2010 came to be

allowed and the judgment dated 03.06.2010 passed by the

Judicial Magistrate, Barmer in Criminal Case No.444/2007 was set

aside and the matter was remanded to that Court for fresh

adjudication.

The Judicial Magistrate, Barmer vide judgment dated

01.08.2016 (Annex.4) had convicted the petitioner for offence

punishable under Section 138 of the Negotiable Instruments Act

and sentenced him accordingly. Against the judgment dated

01.08.2016 (Annex.4) passed by the Judicial Magistrate, Barmer,

the petitioner has preferred an appeal, which is pending

consideration in the Court of Additional District Judge, Barmer.

The petitioner has filed this writ petition mainly on the

ground that the Additional Sessions Judge, Balotra has illegally

entertained the Criminal Appeal No.22/2010 preferred on behalf of

the respondent No.2 as the criminal appeal preferred by the

respondent No.2 was not maintainable because as per Section

378(4) Cr.P.C., the complainant could have filed special leave to

appeal and not appeal before the Additional Sessions Judge (Fast

Track), Balotra.

The learned counsel has submitted that as the respondent

No.2 has preferred direct appeal which was not at all maintainable

and as such the judgment passed by the Additional Sessions

Judge (Fast Track), Balotra on 28th February, 2011 of setting aside

the acquittal of the petitioner by the trial court and to remand the

matter to it was void ab initio. It is submitted that as the said

order was void ab initio, the judgment passed by the Judicial

Magistrate, Barmer dated 01.08.2016 convicting and sentencing

(3 of 3) [CRLW-459/2021]

the petitioner for the offence punishable under Section 138 of the

Negotiable Instruments Act is also liable to be set aside.

Having heard learned counsel for the petitioner and after

going through the material available on record, I am of the opinion

that the above argument advanced by the learned counsel for the

petitioner cannot be taken into consideration while exercising

powers under Article 226 of the Constitution of India.

It is noticed that against the conviction and sentence order

passed by the trial court, the petitioner has already preferred a

statutory appeal which is pending consideration and in such

circumstances, I do not find any reason to entertain this petition

seeking relief of quashing the conviction and sentence order

passed by the trial court. The petitioner can very well raise this

point before the Additional Sessions Judge (Fast Track), Balotra.

I am of the opinion that any judgment passed by a

competent criminal court after trial cannot be set aside by the

High Court while exercising jurisdiction under Article 226 of the

Constitution of India when the provisions of statutory appeal are

there.

In view of the above discussion, this writ petition is

dismissed with costs of Rs.2,000/-, which shall be deposited by

the petitioner with the Legal Services Authority, Jodhpur within a

period of two months, failing which, the Legal Services Authority,

Jodhpur shall inform this Court about non-payment of the said

cost.

(VIJAY BISHNOI),J 34-Babulal/-

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