Laxman vs State Of Uttarakhand And Others

Ravindra Maithani, J

Challenge in the instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') is order dated 29.11.2018 passed in complaint case no.1439 of 2015, pending in the court of learned Additional Chief Judicial Magistrate, Roorkee, Haridwar (for short the case) and further the order dated 30.04.2019 passed by learned Additional Sessions Judge, Roorkee, Haridwar passed in Criminal Revision No.804 of 2018, Laxman Vs. State and Another.

Heard learned counsel for the parties and perused the record.

The case is pending under Section 138 of Negotiable Instruments Act, 1881 against the petitioner. Petitioner has been examined under Section 313 of the Code on 25.07.2018. Thereafter, the case was fixed for defense evidence. On 29.11.2018, no defense evidence was adduced by the petitioner and therefore, opportunity was closed. On 28.12.2018, an application was filed on behalf of the petitioner, to the effect that on 28.11.2018, when he appeared in the court, his learned counsel had assured him that they had adduced defense evidence. He was asked to sign on the order sheet and directed to come to the court on 10.12.2018 for his statement but, when on 10.12.2018, he reached the court, he learnt that the opportunity to adduce the defense evidence had already been closed by the court. Therefore, it was requested that the order dated 29.11.2018 be recalled and petitioner be provided an opportunity to adduce defence evidence. This application was rejected on 20.12.2018. The order dated 20.12.2018 was challenged in Criminal Revision No.804 of 2018, which was rejected on 30.04.2019. Aggrieved, the instant petition.

Learned counsel for the petitioner would argue that on 29.11.2018, petitioner was told by his counsel that defense evidence has already been adduced and further he was directed to come to the court on 10.12.2018. It is urged that subsequently petitioner realized that his opportunity to adduce defense evidence has already been closed on 29.11.2018. It is argued that there is no fault of the petitioner and he ought to have been provided one more opportunity, therefore, while setting aside the impugned order, the petition may be allowed.

No doubt, fair trial encompasses within its ambit right to adduce evidence in defence by the accused, but this right cannot be unguided. On 29.11.2018, the court categorically recorded in the order sheet that till 02:30 p.m., no evidence was adduced in defense. Copy of the order sheet has been filed by the petitioner, which also reveals that petitioner was present on that day. Application for recall was filed on 20.12.2018 and it is stated that on 10.12.2018 when petitioner reached the court, he came to know that his opportunity to adduce defense has already been closed.

Learned revisional court had categorically elaborated the sequence of events in paragraphs 4 and 5 of the judgment. Petitioner was provided opportunity to adduce evidence on 28.08.2018, 26.09.2018, 27.11.2018 and 29.11.2018. No evidence was adduced on those days. According to the petitioner, when on 10.12.2018, he reached the court, he realized that opportunity to adduce evidence had already been closed. But learned Revisional Court had noted that, in fact, on 10.12.2018, the petitioner did not appear in the case and it is a statement which is not based on record. It also shows that the matter has been protracted by the petitioner at the defence evidence stage. It's a case under Section 138 of the Act, which is to be decided expeditiously.

In view of the above, this Court is of the view that the learned Court below has not committed any error and no interference is warranted in these proceedings. Accordingly, the petition deserves to be dismissed and the same is hereby dismissed.