IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
S.B. CRIMINAL APPEAL NO.800/2009
SMT. NEELAM SHARMA
Vs.
STATE OF RAJASTHAN & ORS.
DATE: 11.07.2011
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN
Mr. Asgar Ali Khan, for the appellant.
Ms. Rekha Madnani, Public Prosecutor
for the State.
Mr. Manish Kumawat, for the respondents.
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Heard learned counsel for the parties.
2. Appellant has preferred this appeal under Section 341 Cr.P.C. against the order dated 15.11.2008 passed by the Special Judge, Special Court (Sati Niwaran) Rajasthan & Additional Sessions Judge, Jaipur, whereby application of appellant under Section 340 read with Section 195(1)(b) Cr.P.C. was directed to be disposed off along with original criminal appeal, filed by appellant.
3. It appears that a criminal complaint was filed against the appellant by respondent No.1 under Section 138 of the Negotiable Instruments Act and after completion of trial, appellant was convicted and sentenced vide judgment and order dated 30.01.2006 passed by Additional Civil Judge (Junior Division) & Judicial Magistrate No.16, Jaipur City, Jaipur in Criminal Complaint No.917/2001 for offence under Section 138 of the Negotiable Instruments Act to one year’s simple imprisonment and a compensation of Rs. Five lacs.
4. Being aggrieved with the same, an appeal was preferred by the appellant and during pendency of that appeal, the present application under Section 340 Cr.P.C. was filed. Learned Appellate Court vide impugned order dated 15.11.2008, directed that the said application will be disposed off along with appeal itself.
5. Being aggrieved with the same, appellant initially preferred S.B. Criminal Misc. Petition No.36/2009 under Section 482 Cr.P.C. before this Court. A Co-ordinate Bench of this Court took a view that order is appealable, therefore, present appeal has been preferred.
6. Submission of the learned counsel for appellant is that the Appellate Court committed an illegality in not deciding the application and passing the order that it will be decided along with main appeal itself. His submission is that documents in question are forged one, therefore, it was necessary to make an enquiry and record a finding about genuineness of the documents first and only to decide the appeal thereafter. He, therefore submitted that order passed by the Appellate Court may be set aside and the said Court be directed to decide the application of appellant forthwith.
7. Learned counsel for respondents submitted that present appeal itself is not maintainable as appeal under Section 341 Cr.P.C. is maintainable only against an order of the Court refusing to make a complaint under sub-Section (1) or sub-Section (2) of Section 340 Cr.P.C., whereas the Appellate Court has neither dismissed nor allowed the application, therefore, it cannot be said that Appellate Court has refused to make a complaint in the matter. He further submitted that the said application could have been filed only before the trial Court and not before the Appellate Court. He also referred Sections 340, 341 and 195 Cr.P.C. in supported of his submissions. He also submitted that there is no illegality in the impugned order as the Appellate Court was of the view that it will be appropriate, in the facts and circumstances of the present case, to decide the application along with appeal itself.
8. I have considered the submissions of the learned counsel for the parties and examined the impugned judgment passed by the Court below.
9. So far as first objection regarding maintainability of the appeal is concerned, suffice it to say at this stage that Co-ordinate Bench of this Court while dismissing criminal misc. petition of appellant vide order dated 01.04.2009, observed that impugned order is appealable, therefore, I do not want to go into that controversy and treat this appeal as maintainable.
10. So far as second objection as to whether application should have been filed before the Appellate Court or it could have been filed before the trial Court is concerned, observation and finding on that issue may affect either of the party, therefore, it is not desirable at this stage to comment on the said objection also.
11. After considering all the facts and circumstances of the case and the relevant provisions of law, I do not find any error in the impugned order passed by the Appellate Court. Appellate Court has passed a discretionary order that application will be decided along with main appeal itself. There is no jurisdictional error in the impugned order so as to interfere with the same. Rights of appellant have not been prejudiced in any manner as Appellate Court will decide the application along with appeal itself.
12. In view of above, I do not find any illegality in the impugned order so as to interfere with the same.
13. There is no merit in this appeal and the same is, accordingly, dismissed.
14. Appellate Court i.e. Special Judge, Special Court (Sati Niwaran) Rajasthan & Additional Sessions Judge, Jaipur is directed to decide the appeal as well as application of appellant under Section 340 Cr.P.C. at the earliest, but not later than a period of two months from the date of receipt of certified copy of this order.
15. Registry is directed to send a copy of this order to the concerned Court for compliance.
(NARENDRA KUMAR JAIN),J.
/KKC/