Malchand Saraswat vs Swati Chandak

Heard learned counsel for the parties. Perused the material on record.

The petitioner accused is facing trial in the Court of Judicial Magistrate, N.I. Act Cases, No.3, Bikaner for the offence under Section 138 of the N.I.

Act.

The statement of the petitioner under Section 313 Cr.P.C. was recorded by the trial court on 15.06.2015. Thereafter, 14 opportunities were provided

to the accused petitioner but he failed to lead any evidence in defence. In the year 2017, the petitioner filed an application under Section 254 read with

Section 351 Cr.P.C. praying for an opportunity to lead defence evidence.

Learned Judicial Magistrate, considered the said request to be lacking bonafides and intended to delay the proceedings and rejected the application by

order dated 12.09.2017. The said order has been affirmed in revision by the order dated 21.09.2019. Both these orders are assailed in this misc.

petition.

I have heard and considered the submissions advanced at Bar and have gone through the impugned orders.

I am duly satisfied that the entire endeavour of the petitioner in failing to lead evidence in defence despite numerous opportunities was aimed at

delaying the proceedings of the trial as has been observed in the impugned orders. Nonetheless, in order to secure the ends of justice and provide the

accused an opportunity to fair trial, he deserves to be granted a single window of three days to lead defence evidence before the trial court subject to

deposition of cost which is quantified at Rs.1,00,000/-. The cost shall be deposited with the trial court within 10 days. Thereafter, the trial court shall

provide a single window of three continuous days to the petitioner to lead defence evidence. It is made clear that the trial court shall not summon any

witness on behalf of the petitioner who will be under an obligation to produce his witnesses and examine them in defence at the trial. Out of the cost

so deposited, a sum of Rs.50,000/- shall be paid to the respondent complainant whereas the remaining amount of Rs.50,000/- shall be appropriated in

the funds of the District Legal Services Authority, Bikaner.

The impugned order dated 12.09.2017 passed by the Special Judicial Magistrate (N.I. Act Cases) No.3, Bikaner and the order dated 21.09.2019

passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner are set aside/modified with these observations and directions.

The misc. petition is allowed in these terms. Stay application is disposed of.