Rajasthan High Court - Jodhpur
Satish Kumar vs Bachan Singh on 26 May, 2022
Bench: Pushpendra Singh Judge)
(1 of 4) [CRLR-63/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 63/2022
Satish Kumar S/o Sh. Tarachand, Aged About 58 Years, B/c
Arora, R/o H.no. 87-B, Prem Nagar, Sriganganagar, Dist. Sri
Ganganagar (Raj.).
----Petitioner
Versus
Bachan Singh S/o Sh. Fauja Singh, B/c Khatri, R/o H.no. 41, H-
Block, Sri Ganganagar, Dist. Sriganganagar (Raj.).
----Respondent
For Petitioner(s) : Mr. B.S. Sandhu with
Mr. Gagandeep Mashal
For Respondent(s) : Mr. Chandra Prakash on behalf of
Dr. R.D.S.S. Kharlia
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on : 24/05/2022
Pronounced on : 26/05/2022
1. This Criminal Revision Petition has been preferred under
Section 397 read with 401 Cr.P.C. claiming the following relief:
"It is, therefore, most respectfully prayed that this revision
petition filed by the petitioner may kindly be allowed and order
impugned dated 23.12.2021 may kindly be declared illegal and
the same may kindly be quashed and set aside; and
(ii) Further the application filed by the petitioner U/s 394 Cr.P.C.
may kindly be allowed, and appellate court may kindly be
directed to call the witness Dilbagh Singh and record his
evidence, or remand the matter before the trial court for
recording of evidence.
(iii) Any other relief, direction that Hon'ble Court may feel just
and proper in the facts and circumstances of the case may kindly
be issued in favour of the petitioner."
(Downloaded on 27/05/2022 at 08:53:07 PM)
(2 of 4) [CRLR-63/2022]
2. Brief facts of the case as noticed by this Court are that a
complaint under Section 138 of Negotiable Instruments Act was
filed, in which, the complainant has alleged that the present
petitioner had taken an amount of Rs.7.50 Lakh from the
complainant Bachan Singh and gave him a cheque bearing
No.062318 dated 15.08.2014. In the proceedings that ensued, the
learned trial court recorded the statement of the complainant and
convicted the petitioner on 25.01.2019 and imposed one year's
sentence and fine of Rs.14 lakhs.
3. The bone of contention now is the application, preferred
during appeal, under Section 391 Cr.P.C. for calling of additional
evidence particularly, that of Dilbagh Singh, who could not depose
before the learned trial Court.
4. Learned counsel for the petitioner has submitted that Dilbagh
Singh was called by the court on number of occasions from
14.09.2016 to 04.12.2018, but despite, the court's calling, he did
not come and then the onus was shifted upon the present
petitioner to calling/call him, and thereafter, the evidence of
defence was closed and the conviction was made.
5. Learned counsel for the petitioner further submitted that the
learned trial court ought to have realized that it was beyond the
power and capacity of the present petitioner, to have called the
said Dilbagh Singh, despite his being a critical and crucial witness,
to sustain his defence as Dilbagh Singh was the person, through
whom the amount was to be paid to the complainant.
6. Learned counsel for the petitioner has relied upon the
judgment rendered by this Hon'ble Court in State of Rajasthan
Vs. Murari Lal & 2 Ors. reported in 2002(3) WLN 261, relevant
portion of which is reproduced hereunder:
(Downloaded on 27/05/2022 at 08:53:07 PM)
(3 of 4) [CRLR-63/2022]
"12. Andhra Pradesh High Court in the case of The Public
Prosecutor v. Gundu Rao (1), held that the prosecution witnesses
if not produced, it is the duty of the Magistrate to take coercive
steps to compel their attendance and acquiltal on that ground
was not justified.
13. Similarly Mysore High Court in the case of The State of
Mysore v. Kalilulla (2), has held lhat order of acquittal on the
ground of non-appearance of prosecution witnesses cannot be
justified. Similar view was taken by Kerala High Court in the case
of State of Kerala v. Gopalan (3). A Full Bench of Madras High
Court in the case of the The State v. Veerappan and Ors. (4),
also took a view lhat acquittal of accused persons merely on the
ground of non-production of evjdence by the prosecution is not
permissible.
14. In my view also, in the administration of criminal justice, a
duty is cast upon the Court to procure the attendance of
witnesses though primarily responsibility of producing the
witnesses is on the prosecution. The Magistrate should not feel
helpless in such situation and should exercise' its discretion to
procure the attendance of witnesses. If the prosecution by its
negligence or otherwise fails to discharge its responsibility in
producing the witnesses, it is incumbent on the court to examine
such witnesses as it considers necessary for the ends of justice.
15. Apart from that, as slated above, dereliction of duty on me
part of learned CJM who passed the order of acquittal on
11.10.99 is clearly established and for the above reasons, the
order of acquittal in the present case cannot be sustained and is
liable to be set aside."
7. Learned counsel for the respondent opposed the submissions
made on behalf of the petitioner.
8. After hearing learned counsel for the parties as well as
perusing the record of the case along with the precedent law cited
at the Bar, this Court finds that the decision arrived at by the
learned trial court is justified because ultimately the trial under
Section 138 has to be a summary trial and if sufficient evidence to
convict and the preponderance of probability is met, then there is
no reason for creating an elaborate trial where none is required.
(Downloaded on 27/05/2022 at 08:53:07 PM)
(4 of 4) [CRLR-63/2022]
Moreover, the petitioner could not point out a single reason as to
why the liability and presumptions arising out of Section 138 were
not made out against him. Further, the delay in the proceedings of
appeal by entertaining Section 391 Cr.P.C. at this stage by the
learned trial court, would have been detrimental to the cause of
justice.
9. In view of the above, no interference in the present revision
is called for and the same is accordingly dismissed. All pending
applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
168-Zeeshan
Powered by TCPDF (www.tcpdf.org)
