Akshay Kashyap vs State Of Uttarakhand And Another
2021 Latest Caselaw 344 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
              Criminal Misc. Application No. 251 of 2021

Akshay Kashyap                                               ....... Petitioner

                                      Vs.

State of Uttarakhand and another                          .......Respondents
Mr. Bharat Singh, Advocate for the petitioner.
Mr. J.S. Virk, Dy.GA with Mr. Rohit Dhyani, Brief Holder for the State.
Mr. Mehboob Rahi, Advocate for the respondent no.2.

                                 Judgment

Hon'ble Ravindra Maithani, J. (Oral)

The instant petition filed under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as "the Code),

challenges the order dated 29.01.2021 passed in Criminal Revision

No.09 of 2021, Akshay Kashyap vs. Rakesh, by the court of learned

District and Sessions Judge, Udham Singh Nagar, (for short " the

revision") by which an order dated 03.11.2020, passed in Criminal

Case No.2244 of 2018, Rakesh Kumar vs. Akshay, passed by the

court of learned Additional Chief Judicial Magistrate Kashipur,

District Udham Singh Nagar, (for short "the case") has been

confirmed. By the order dated 03.11.2020 passed in the case, an

application filed by the petitioner under Section 91 of the Code, has

been dismissed.

2. The case is pending under Section 138 of the Negotiable

Instruments Act, 1888 (for short "the Act") against the petitioner. At

the stage of argument an application under Section 91 of the Code

was moved by the petitioner for requisitioning certain documents

relating to the firm of the respondent no.2, who is the complainant of

the case. By the order dated 03.11.2020 passed in the case the

application has been rejected. The learned trial court in its order dated

03.11.2020 detailed the dates, which were fixed for defence evidence

and observed that the application was moved by the petitioner for

delaying the trial of the case. This order dated 03.11.2020 was further

challenged in the revision, which has been dismissed with a cost of

Rs.1 lakh.

3. The learned counsel for the petitioner would submit that

the petitioner in order to prove its defence moved application under

Section 91 of the Code for summoning certain documents, which

ought to have been allowed but by rejecting the application the

opportunity of defence has been closed.

4. The order rejecting the application under Section 91 of

the Code of the petitioner, dated 03.11.2020 is quite in detail. The

learned court below has observed as to how the petitioner repeatedly

sought adjournment and delayed the trial of the case.

5. In the case, once earlier the opportunity to adduce

defence evidence was closed by the court on 08.04.2019, which was

challenged in the revision. That revision which was decided on

18.07.2019 and the petitioner was given further opportunity to adduce

the evidence, but even thereafter the petitioner kept on adjourning the

case. The court in the impugned order dated 29.01.2021 observed the

sequence as hereinunder:-

"Even after obtaining a legal concession (that to on the request of the revisionist that he should be given one opportunity to produce defence evidence) from the revisional court to produce his defence, the

revisionist/accused still kept on with his lackadaisical approach. On 03.08.2019, 08.08.2019, 21.09.2019, 10.10.2019, 24.10.2019, 07.11.2019, 05.12.2019, 21.12.2019, 16.01.2020, 27.01.2020, 31.01.2020, almost for 6 months from passing of the order by revisional court, the revisionist/accused did not bring his defence evidence, which was finally produced on 04.02.2020, on which date defence evidence was closed and thereafter matter was listed for final arguments.

On the fine morning of 03.11.2020, the accused/ revisionist had a happy realization that he has got one more opportunity to delay the trial, thus he presses for his application as moved under Section 91 Cr.P.C., which was moved on 04.09.2019, much prior to closing of defence evidence i.e. on 04.02.2020, for almost 5 months he slept over these applications in both the matters. It will be pertinent to point out here that by these applications the revisionist wanted the court to summon the documents of registration of the complainants firms from Sales Tax Department, though ironically no question relating to registration of complainant firms with Sales Tax Department was put in cross examination to the complainants by the accused/revisionist nor this was taken during defence evidence by the revisionist/accused. On the contrary the documents which revisionist/accused wanted to summon through these applications, those documents revisionist/accused had obtained relating to complainants firms through RTI application from Sale Tax Department and even they were filed through list of documents by the revisionist/accused vide papers No.13Kha/189, and 13Kha/190, in case No.2243 of 2018 and paper no.13Kha/180, and 13Kha/181 in case no. 2244 of 2018. Than question arises why revisionist/accused wanted to summon these documents when he was already in possession of the same from Sale Tax Department, obvious reason is to delay the trial.

Again at this juncture it is to highlight that no stone was left unturned by the revisionist/accused to delay the proceedings of trial and this is reflected from his application dated 23.02.2018, which was moved in both the complaint cases, wherein "egksn;] izkFkhZ^@vfHk;qDr fuosnu djrk gS fd [email protected];qDr dk mijksDr ekeysokyk esa ifjoknh ls jkthukek gks x;k gSA jkthukes ds rgr [email protected];qDr }kjk ifjoknh dks vkil esa r;'kqnk /kujkf'k dk Hkqxrku fnukad 15&05&2018 rd djuk gSA vr% Jheku th ls izkFkZuk gS fd [email protected] vfHk;qDr dks mDr ekeys esa vkil esa r;'kqnk /kujkf'k dk Hkqxrku djus gsrq fnukad 15&05&2018 rd dk le; iznku djus dh d`ik djsaA" It appears

that again this move of the revisionist/accused was nothing but time gaining strategy and to delay the trial.

The entire sequences of even as highlighted above, convinces this court that revisionist/accused has adopted all mechanism to delay the trial."

6. The above narration of the facts recorded in the

impugned order categorically exposes the petitioner that he intended

to delay the trial of the case. In the impugned order it is also recorded

that in fact the documents which the petitioner wanted to summon by

way of filing the application under Section 91 of the Code, had

already been submitted by the petitioner himself, in the record of the

case. For two reasons the application under Section 91 of the Code

filed by the petitioner was rejected. Firstly, the document was not

required at all because it was already on record and filed by the

petitioner himself and secondly, the petitioner wanted to delay the

trial. This observation is based on material. In fact, the record reveals

that the petitioner in one way or the other perhaps intends to delay the

trial of the case, but he cannot be permitted to do so. The Court does

not see any reason to make any interference in the instant case,

accordingly, the petition deserves to be dismissed.

7. The petition is dismissed.

(Ravindra Maithani, J.) (Vacation Judge) 15.02.2021

BS/SS