IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Rev.627 of 2007
DATE OF DECISION : SEPTEMBER 24, 2008
JAI PARKASH SINGH ....... PETITIONER(S)
VERSUS
RAJIVE KUMAR GUPTA .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. JS Gill, Advocate, for the petitioner(s).
None for the respondent.
AJAI LAMBA, J. (Oral)
This revision petition is directed against order dated
11.12.2006, passed by the Sub Divisional Judicial Magistrate, Batala.
The facts, as stated by the learned counsel for the petitioner, in
brief, are that Rajiv Kumar Gupta (respondent) filed a complaint for
commission of offence under Section 138, Negotiable Instruments Act,
1881, against the petitioner and his wife. The case of the petitioner is that
the entire loan amount taken by the petitioner had been repaid. The
respondent-complainant was merely an employee with the persons from
whom the loan was taken. The complainant, having access to the record,
had taken out a blank signed cheque of the petitioner from the record and
after misusing the same, the complaint was filed. During the intervening
period, when the petitioner approached Rajiv Kumar Gupta, he admitted
Criminal Rev.627 of 2007 2
that the case, in fact, was false. The conversation was recorded by the
petitioner in an audio cassette.
During the course of proceedings before the trial court, it
seems that Rajiv Kumar Gupta was represented by his Power of Attorney
holder-Subhash Chander. Subsequently, it transpired that, in fact, Deep
Kumar Gupta, father of Rajiv Kumar Gupta, was projecting himself as
Subhash Chander. The Power of Attorney available on record (Exhibit C-
1) is in favour of Subhash Chander, however, Deep Kumar Gupta has
been appearing. This fact has been brought out by the learned counsel for
the petitioner to show the conduct of the complainant, who has even
misled the court during the proceedings.
When the petitioner appeared as his own witness during the
course of trial, the petitioner produced the audio cassette to which a
reference has been made above. The contents of the audio cassette and
the voice were put to Deep Kumar Gupta who, however, took the stand
that it was not the voice of Rajiv Kumar Gupta. This necessitated passing
of order dated 3.10.2005 whereby the cross-examination of the petitioner
was deferred and the Power of Attorney holder of the complainant was
directed to produce the complainant in court on the adjourned date so that
he could make a statement either admitting his voice on the audio cassette
or denying the same.
At a later stage during hearing, the stand taken on behalf of
the complainant was changed and an application was made by Deep
Kumar Gupta that the audio cassette is required to be heard in a noise free
atmosphere and only thereafter some opinion can be given. The
Criminal Rev.627 of 2007 3
application has been allowed vide impugned order dated 11.12.2006.
The contention of the learned counsel for the petitioner is that
this very issue having been considered and adjudicated upon vide order
dated 3.10.2005, the order cannot be reviewed in view of the provisions of
Section 362, Code of Criminal Procedure. The stand of the petitioner is
that order dated 3.10.2005 cannot be altered or reviewed as there is no
clerical or arithmetical error apparent on the face of the record.
I have heard the learned counsel for the petitioner.
I have also taken note of the contention of the learned counsel
for the petitioner in regard to the conduct of the complainant or his Power
of Attorney, as noticed above.
I find that when the complainant-respondent could not be
served by ordinary process at the address given in the Power of Attorney
or in the proceedings before the trial Court, the respondent was required to
be served through his counsel Shri V.K. Dutta, Advocate, District Courts,
Batala. Despite service, however, none had put in appearance in this
court.
I have considered the contents of the impugned order as also
the contents of order dated 3.10.2005. There remains no dispute with the
fact that the audio cassette was put to Deep Kumar Gupta in court. Deep
Kumar Gupta took the stand that it was not the voice of Rajiv Kumar
Gupta and, therefore, the complainant was required to be present in court.
Apparently, the complainant has been avoiding appearance in court
although the proceedings were initiated at his instance. At a later stage,
an application was filed for rehearing of the audio cassette in a noise free
Criminal Rev.627 of 2007 4
place or in a separate room, which has been allowed vide the impugned
order. Clearly, the impugned order is an order in review of earlier order
dated 3.10.2005.
Accordingly, the petition is allowed and impugned order
dated 11.12.2006 is hereby set aside.
I have noticed that the complaint was instituted on 12.1.2002.
The sequence of events noticed by me make it clear that the proceedings
are being delayed on account of the conduct of the complainant. The
petitioner cannot be asked to face prosecution/criminal proceedings for
continuous period only because the complainant chooses to delay the
proceedings. The trial court is required to take notice of the conduct of the
complainant also and pass appropriate orders in case the complainant does
not put in appearance, as required. The complainant would put in
appearance before the trial court on 15.10.2008, for further proceedings,
as are required to continue under order dated 3.10.2005. The service of
this order on the counsel for the complainant in the trial court would be
sufficient service on the respondent-complainant.
September 24, 2008 ( AJAI LAMBA ) Kang JUDGE