Rajasthan High Court - Jodhpur
Latesh Kumar vs State Of Rajasthan on 3 October, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:39234]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1337/2019
Latesh Kumar S/o Kantilal Tarathi, Aged About 44 Years, Baroda,
Tehsil Aaspur, District Dungapur (Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through P.p.
2. Anup Kumar Choudhary S/o Nirmal Kumar Choudhary,
Aanand Dawakhana, Suraj, Near Ashapura Travels,
Rambola Math, Old Bus Stand, Dungarpur (Raj.).
----Respondents
For Petitioner(s) : Mr. M.C. Bishnoi
Mr. Kuldeep Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
Mr. Narendra Thanvi
HON'BLE MR. JUSTICE FARJAND ALI
Order
Order pronounced on : 03/10/2025
Order reserved on : 08/07/2025
1. The petitioner happens to be complainant of the case filed by
him against the accused respondent No.2 for committing an
offence under Section 138 of the Negotiable Instruments Act.
Learned Judicial Magistrate, Asspur, District Dungarpur vide
judgment dated 04.02.2019 convicted the respondent and passed
an order of sentence. A challenge was made by the accused by
preferring Appeal No.9/2019. The learned Additional Sessions
Judge, Sagwara, District Dungarpur vide judgment dated
30.07.2018 partly allowed the appeal. The learned appellate court
was of the view that the agreement dated 06.04.2016 executed
between the parties could not be tendered into evidence during
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trial. The learned court of appeal made observance about
insertion of one additional '0' in the amount mentioned in the
cheque. Looking to the circumstances of the case, the learned
ASJ allowed the appeal in part and remanded the matter back to
the trial court with certain directions particularly to use the
agreement dated 06.04.2016 in consideration and then to pass a
fresh order. At the same time, the court of appeal ordered that
the interim order of suspending of sentence till disposal of the
appeal passed on 10.05.2019 shall remain in force until passing of
the order by the trial court.
2. Though this court noticed that some error has been made by
the learned ASJ as it was supposed to set aside the judgment
passed by the learned trial court when it made up mind to remand
the matter for passing a fresh order, however, this seems to be
just a human error and therefore, can be ignored.
3. I have heard learned counsel for the parties and gone
through the record of the case.
4. The record also has availability of the original agreement
dated 06.04.2016, on which coloured photographs of both the
parties are affixed and it is duly notarized by one advocate and
also bears signature of a witness. There is a recital in the
agreement regarding giving of cheque in question to the
complainant and it is understandable that it was for the amount of
Rs.50,000/- only (in words, Rupees Fifty Thousand) and not for
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Rs.5,00,000/- (in words, Rupees Five Lacs). Section 391 of the
CrPC gives power to the court of appeal to take on record
additional evidence if it appears necessary for the just decision of
the case. The word "evidence" includes in its ambit oral,
documentary and electronic record. The courts are meant to
impart justice and for that purpose alone they are established.
Certainly cases before the courts are not supposed to be decided
on technicalities, rather it is expected to be decided on the merits.
When the original agreement dated 06.04.2016 purportedly
executed between the parties is on record, which, may be due to
some unavoidable circumstances, could not be tendered into
evidence during trial, but in the opinion of this court it should not
prevent the court to pass directions for taking the same on record
by exercising powers conferred under Section 391 of the CrPC.
Section 386 of the CrPC authorizes the court of appeal to pass an
order of acquittal or reverse such order or to pass directions for
making further enquiry or that the accused be retried. The court
of appeal has ample power to set aside the judgment of conviction
and to remand the matter back to the trial court with certain
directions. The court owe a duty that substantial justice is done in
accordance with the procedure established by law. In essence,
the learned appellate court has not committed any error of law in
remanding the matter back to the trial court with certain
directions. There is no force in the petition and the same
deserves dismissal.
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5. Accordingly, the judgment passed by the learned ASJ,
Sagwara in Criminal Appeal No.9/2019 is affirmed. By exercising
extraordinary powers vested in this court, it is ordered that the
judgment of conviction and order of sentence dated 04.02.2019
passed by the learned Judicial Magistrate, Aaspur in Criminal
Original Case No.230/2017 is hereby set aside. A further direction
is given that the learned trial court shall allow the accused
respondent to tender the document dated 06.04.2016 in evidence.
Of course, the petitioner complainant would have right to lead
evidence in rebuttal so also to cross-examine if the accused or his
witnesses are produced. The submission regarding insertion of
additional "0" (Zero) in the amount mentioned in Ex.P/1 cheque
shall also be considered. Simultaneously it shall also be
considered that the amount of Rs.5,00,000/- (Rupees Five Lacs) is
mentioned in writing also on it. All the aspects shall be taken into
consideration besides the material already available including
Ex.P/1 to Ex.P/4. The accused respondent shall whereafter be
examined under Section 313 of the CrPC. Again the option of
Section 315 of the CrPC shall be given to him alongside leading of
evidence in defence. The learned trial court shall pass a judgment
afresh based on the material as would be produced/available on
record and it is cautioned that it shall not be influenced by any of
the observation made by the court of appeal except the order
regarding taking the document on record. Needless to say that
the evidence of the accused shall be taken in accordance with the
procedure established by law only.
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6. Accordingly, the insant revision petition is disposed of. All
pending applications are also disposed of.
6. The record be sent back forthwith.
(FARJAND ALI),J
87-Pramod/-
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