Sukhdev Singh vs State
2023 Latest Caselaw 1931 Raj

[2023/RJJD/005957]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Criminal Misc(Pet.) No. 694/2020

Sukhdev Singh S/o Nand Singh, Aged About 44 Years, R/o
Jhandwala, Tehsil Sangaria, District Hanumangarh.
                                                                       ----Petitioner
                                      Versus
1.        State, Through PP
2.        Firm Hansraj Jagdish Rai Sadulsahar, Through Proprietor
          Virendra     Kumar       S/o      Hansaraj,         B/c    Agarwal,       R/o
          Sadulsahan, District Sri Ganganagar.
                                                                    ----Respondents


For Petitioner(s)           :     Mr. Aditya Singh Rathore
For Respondent(s)           :     Mr. Mukhityar Khan, PP
                                  Dr.R.D.S.S. Kharliafor R-2



           HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

                                       Order

ORDER RESERVED ON                         :::                        10/02/2023
ORDER PRONOUNCED ON                       :::                        23/02/2023

BY THE COURT:-

The present Misc. Petition under Section 482 Cr.P.C. has been

preferred by the petitioner aggrieved from the order dated

30.01.2020 passed by learned Additional Sessions Judge No.2, Sri

Ganganagar in Criminal Revision No.82/2018 (CIS No.231/2018),

whereby the order dated 31.07.2018 passed by the learned

Additional Chief Judicial Magistrate, Sadulshahar, District Sri

Ganganagar in Criminal Case No. 363/2009 (Firm Hansram

Jagdish Rai Vs. Sukhdev Singh) against dismissal of the

application under Section 311 of the Cr.P.C. was maintained in a

[2023/RJJD/005957] (2 of 5) [CRLMP-694/2020]

criminal case under Section 138 of the Negotiable Instruments

Act.

Learned counsel for the petitioner submitted that on the

basis of liberty granted vide order dated 15.12.2017 passed by a

Coordinate Bench of this Court in S.B. Criminal Misc. Petition

No.1481/2018 to summon documents at appropriate stage,

present petitioner filed an application under Section 311 Cr.P.C. to

summon bank manager, PNB Sadulshahar along with application

to close bank account No.12128 and intimation regarding missing

of cheques submitted by the petitioner. He further submitted that

complainant is a grain merchant whereas the petitioner is an

agriculturist. He submitted that just to transfer money a bank

account was opened at the behest of respondent-2 complainant

and the entire banking operation including custody of cheque book

or other documents were maintained/kept by the complainant

himself. The trial Court without appreciating the importance of

liberty as referred above, dismissed the application. He further

submitted that scope of Section 311 of the Cr.P.C. was well

explained by the Hon'ble Apex Court in the matter of Zahira

Habibullah Sheikh Vs. State of Gujarat (2006) 3 SCC 374

and Swapan Kumar Chatterjee Vs. CBI (2019) 14 SCC 328

but the trial Court has failed to appreciate the valuable

opportunity available to prove defence. He further submitted that

the revisional Court without appreciating the law, has also

dismissed the revision petition on the ground that the order under

Section 311 of the Cr.P.C. is an interlocutory order and revision is

not maintainable. He further submitted that a great prejudice is

[2023/RJJD/005957] (3 of 5) [CRLMP-694/2020]

caused, if present petitioner is not allowed to led evidence by

summoning the Bank Manager.

Aforesaid contentions were opposed by the learned Public

Prosecutor as well as learned counsel for the respondent No.2.

Learned counsel for the respondent No.2 submitted that this

petition has been filed at a belated stage i.e. just to delay the

original case under section 138 NI Act. He further submitted that

even the closure of bank account falls within scope of an offence

under Section 138 N.I. Act and if there is any recorded intimation

of missing of cheques before issuance of questioned cheque then

same has to be brought on record on earlier occasions, but no

such plea was ever raised against respondent No.2. He further

submitted that this is just an abuse of process of law and filed

with ulterior motives as there was no plausible defence with the

present petitioner.

Heard learned counsel for petitioner, learned Public

Prosecutor and learned counsel for respondent No.2. Perused the

material available on record.

On perusal of the order dated 31.07.2018 indicates that case

was fixed for defence evidence and an application under section

311 CrPC to summon Branch Manager, Punjab National Bank,

Sadulshahar along with certain documents was filed by accused-

petitioner. The object was to prove that bank account No.12128

was closed and intimation regarding missing cheques was already

given to bank. The trial Court opined that if petitioner wanted to

get information then, the same can be obtained under the Right to

Information Act but the same was not obtained, hence the

application was dismissed. The record further indicates that

[2023/RJJD/005957] (4 of 5) [CRLMP-694/2020]

Virendra Kumar S/o Hansraj was examined as P.W. 1 but not a

single question was asked regarding the defence raised to

summon documents/ witness under Section 311 of the Cr.P.C.

meaning thereby, when defence of closure of account or missing of

cheques including misuse of cheque was not raised during cross

examination of P.W. 1, then any defence raised at any subsequent

stage can certainly be termed as after thought. This Court is of

the opinion that in cases under section 138 NI Act, which is also a

quasi civil proceedings, all suggestion or question regarding

defence of accused must be put up in cross examination of the

principal witness of prosecution/complainant.

Herein, the observation of trial court suggest that a period of

ten years has already been lapsed thus the application so filed

cannot be treated as bonafide. The documents submitted to

support the present petition indicates that an application under

Section 91 Cr.P.C. was dismissed by the trial Court but partially

allowed by the revisional Court. This Court vide order dated

15.12.2017 while dismissing the Misc. Petition has given liberty to

petitioner for renewal of his prayer for summoning the document

at an appropriate stage of the trial. The documents as referred

during the course of argument further indicate that an application

under Section 6 of the RTI Act was also filed by the present

petitioner but the bank concerned informed that due to

inadequate and incorrect details of bank account number, required

information cannot be provided. The reply of bank further fortifies

the contentions raised by learned counsel for the respondent No.2

that this petition has been filed just to delay the matter. Present

petitioner was examined as DW-1 before the learned trial Court

[2023/RJJD/005957] (5 of 5) [CRLMP-694/2020]

and his cross examination indicates that he admitted the fact of

opening of bank account, transactions and also the closure of the

said account in the year 2001. The issues raised are still not part

of deposition made before the trial Court. It is not possible for this

Court to examine the evidence led by the parties on merits but

looking to the nature of dispute under Section 138 N.I. Act,

certainly pendency of more than 10 years is highly impermissible.

The principles of law laid down by the Hon'ble Supreme

Court in the case of Zahira Habibullah Sheikh (Supra) and

Swapan Kumar Chatterjee Vs. CBI (Supra), suggests that

whenever it was found that application has been filed with an

object and it was found that it is an abuse of process of law then it

is duty of the Court that such type of applications should not to

encouraged. Hence, these two judgments are not helpful for the

petitioner to buttress his contentions. The original case was

pending for more than 10 years, therefore, in my opinion, the trial

Court was justified in dismissal of application for summoning the

witness and documents.

Thus, the Misc. Petition under Section 482 Cr.P.C. filed on

behalf of petitioner is devoid of merit and liable to be dismissed.

Hence same is dismissed.

(ASHOK KUMAR JAIN),J 38-Mamta/-

Powered by TCPDF (www.tcpdf.org)