Dinesh Chandel vs Mukesh Kumar

Virender Singh, J

Petitioner-Dinesh Chandel has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), before this Court, with a prayer to quash and set aside the order dated 28.09.2024, passed by the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, H.P. (hereinafter referred to as the ‘trial Court’), in case, bearing No.RBT-427-3/2019, titled as ‘Mukesh Kumar Vs. Dinesh Chandel’.

Vide order dated 28.09.2024, the learned trial Court has closed the defence evidence of the petitioner and the case has been ordered to be fixed for arguments.

For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

Brief facts, leading to the filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:-

4.1. Complainant-Mukesh Kumar had filed a complaint, under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’), against accused-Dinesh Chandel, on the ground that in lieu of the part payment of the balance amount of Rs.13,45,661/-, the accused issued a multicity Cheque No.834911 dated 03.10.2018, amounting to Rs.13,20,000/-, drawn on Punjab National Bank, Branch Sainj, in favour of the complainant.

4.2. Thereafter, the said cheque was deposited by the complainant in his bank, which was further forwarded to the banker of the accused. The banker of the accused returned the cheque with the reason that the person, who had issued the cheque, is not having sufficient funds in his account. Subsequently, statutory legal notice was given to the accused, which, as per the complaint, was duly received by the accused. However, neither the same was replied, nor, the amount was paid. Hence, after the statutory period, complaint was filed.

4.3. In the complaint, the learned trial Court had passed the summoning order and after securing the presence of the accused, notice of accusation was put to the accused on 21.04.2020, for which, he has pleaded not guilty. Consequently, the complainant was directed to adduce evidence.

4.4. After closure of the complainant evidence, the entire incriminating evidence was put to the accused, in his statement, recorded under Section 313 of CrPC, on 30.11.2022, and then, the opportunity was given to the accused to lead his defence evidence.

4.5. As per the record, when, on 03.09.2022, CW Mukesh Kumar (complainant) tendered his affidavit in his examination-in-chief, on that day, learned counsel for the accused sought time for cross-examination of the said witness, but, the said opportunity was not given by the learned trial Court and right of the accused to cross-examine the complainant was ordered to be closed. Subsequently, statement of accused, under Section 313 of CrPC, was recorded.

4.6. Thereafter, the aforesaid order was assailed by the accused, before this Court, by way of filing CrMMO No.86 of 2023, which was decided by this Court, on 20.01.2023, by virtue of which, the opportunity was granted to the accused to cross-examine the complainant, subject to the payment of costs of Rs.10,000/-, out of which, 50% of the amount was ordered to be deposited with Sub-Divisional Legal Services Authority and the remaining was ordered to be paid to the complainant.

4.7. In pursuance of the said order, cross-examination of the complainant was conducted and thereafter, the opportunity to lead defence evidence was given to the accused by directing him to take steps for summoning  his  witnesses.  This  order  was  passed  on 19.06.2023 and the matter was thereafter adjourned to 21.08.2023, with a direction to take steps, within a week.

4.8. On 21.08.2023, neither, steps were taken, nor, any witness of the accused was present. Subsequently, the learned trial Court had adjourned the matter to 25.11.2023 for DWs, subject to last opportunity and DWs were ordered to be produced on self-responsibility.

4.9. On 25.11.2023, learned Presiding Officer was on leave and thereafter, the matter was taken up on 06.12.2023.

4.10. The order dated 21.08.2023 was assailed by the accused, before this Court, by way of filing CrMMO No.1198 of 2023, which was allowed, by this Court, by passing the following order:-

“8.Consequently, the present petition is disposed of, by setting aside the order dated 21.8.2023, passed by the learned trial Court.

Accused Dinesh Chandel is directed to take steps for summoning the DWs, within seven days from today. The date for summoning the DWs will be fixed by the learned trial Court on 6.12.2023.

It is further clarified that in case, steps are not taken by accused Dinesh Chandel, to summon the DWs, in that eventuality, the learned trial Court is at liberty to proceed further, in accordance with law. In such situation, no assistance, from the Court, shall be given to accused Dinesh Chandel, for summoning the witnesses.

It is further clarified that if steps are taken, by accused Dinesh Chandel, for summoning the DWs, within the stipulated period, then, the Court is at liberty to take coercive steps, if, despite service, the DWs will not appear before the Court.

Parties, through their learned counsel, are directed to appear before the learned trial Court on 6th December, 2023, at 10.00 a.m.”

4.11. In pursuance of the said order, the matter was taken up by the learned trial Court on 06.12.2023 and accused was directed to take steps for summoning DWs. Consequently, requisite steps were taken, as, evident from the application dated 06.12.2023, which was allowed by the learned trial Court. Accordingly, the diet money for five witnesses had been deposited and the matter was adjourned to 02.03.2024.

4.12. On 02.03.2024, accused was not present. However, vice counsel, on behalf of the accused, was present and one DW Sanjeev Kumar from APMC Office was also present, but, he could not be examined, as, the counsel, representing the accused, was also not present, on that day. As such, the said witness was discharged unexamined by paying the diet money to him. Thereafter, on that day, DWs were ordered to be again summoned for 01.06.2024, on taking steps, within a week.

4.13. Thereafter, the matter was taken up on 10.07.2024. On that day, neither, the complainant, nor the accused was present. However, they were represented by their counsel and in view of the request, made by learned vice counsel, appearing for the accused, DWs were again ordered to be summoned for 12.08.2024, on taking steps, within five days, subject to last opportunity.

4.14. As per the office report, steps were not taken and on that day, the learned trial Court, despite last opportunity, given to the accused, had given further last opportunity to lead defence evidence, subject to payment of costs of Rs.500/-. It was also directed to the accused to take steps, within five days and a specific order was passed that no further opportunity shall be provided to the accused to lead defence evidence. The said order was passed in the presence of the accused.

4.15. As per the office report, accused had not taken the steps. On 28.09.2024, accused had not bothered to put appearance, however, was represented by his counsel, on that day. Although, the previous costs, which were imposed upon the accused on 12.08.2024, were paid, but, due to the fact that no further opportunity shall be given to the accused, the defence evidence of the accused was ordered to be closed.

Aggrieved from the said order, petitioner has preferred the present petition, challenging the order dated 28.09.2024, passed by the learned trial Court, whereby, his defence evidence has been ordered to be closed.

In the case, while allowing CrMMO No.1198 of 2023, on 01.12.2023, specific directions were issued to the accused to take steps for summoning DWs. Admittedly, those steps were taken, but, when, the witness i.e. Sanjeev Kumar from APMC Office, was present, on that day, neither, the accused, nor his counsel, put appearance and on account of the request, made by vice counsel, representing the accused, the said witness was discharged unexamined by paying the diet money to him. Thereafter, two effective opportunities were given to the accused to take steps for summoning the DWs. Admittedly, those steps have not been taken by the accused.

It has vehemently been argued by learned counsel, appearing for the petitioner-accused, that the diet money for summoning the witnesses was deposited on 06.12.2023.

Perusal of record shows that on 02.03.2024, DW, mentioned at Sr. No.4, as per list of witnesses, namely Sanjeev Kumar, was present, whereas, the summons, issued against DWs, mentioned at Sr. No.3, Arun, S/o Jia Lal and mentioned at Sr. No.4, were received back after due service. DW, mentioned at Sr. No.4, was present on that day and was discharged.

Once, the summons, issued against DW Arun, were received back after due service and he had not put appearance, before the learned trial Court, in that eventuality, the learned trial Court was expected to take coercive steps, regarding securing the presence of the witness. Admittedly, the learned trial Court had not taken those steps to secure the presence of the witness, against whom, summons were issued for 02.03.2024 and were served. In such situation, the order dated 28.09.2024, passed by the learned trial Court, does not stand in the judicial scrutiny.

At the most, petitioner (accused) can be said to be negligent in pursuing the case, but, once, he approached the Court with a prayer to permit him to lead defence evidence, such opportunity cannot be denied to him, as, he has every right to prove/probabilize his defence.

In view of the discussions, made hereinabove and in view of the facts and circumstances of the present case, the present petition is allowed and the order dated 28.09.2024, passed by the learned trial Court, in case, bearing No.RBT-427-3/2019, titled as ‘Mukesh Kumar Vs. Dinesh Chandel’, is set aside.

The petitioner is directed to take requisite steps for summoning the DWs, within a period of seven days, from the date of his presence, before the learned trial Court and thereafter, the learned trial Court is requested to fix the date for DWs. Learned trial Court is also requested to take coercive steps, regarding securing the presence of DWs, in case, the steps have been taken by the petitioner (accused), within a period of seven days. However, this order shall be subject to the payment of costs of Rs.20,000/-, to be paid to the complainant.

Parties, through their counsel, are directed to appear, before the learned trial Court, on 16.06.2025 at 10:00 am.

With these observations, the present petition is disposed of accordingly.

Pending miscellaneous application(s), if any, shall also stand disposed of.

Send down the record forthwith.