Dismissed

Shri Kamlesh Kumar Sharma Son of Shri Babulal Bagda, v. Shri Ratan Lal Son of Shri Bhairuram

Rajasthan HC6 Mar 2024CRLMP/129/2024

Case brief

AI extract

What is this about?

This Court dismissed a criminal petition under Section 482 CrPC challenging the rejection of a second Section 311 CrPC application. The petitioner, who failed to avail a previously granted opportunity for cross-examination in a cheque dishonour case, was denied a rehearing. The Court found the petitioner's conduct non-bona fide and an attempt to delay proceedings.

What did the court decide?

The instant criminal miscellaneous petition is dismissed; the trial Court is directed to conclude proceedings expeditiously within four months.

Shri Kamlesh Kumar Sharma Son of Shri Babulal Bagda, Vs… — Cheque Dishonour | Rajasthan HC (2024)

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[2024:RJ-JP:11610]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 129/2024

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Shri Kamlesh Kumar Sharma Son of Shri Babulal Bagda, Resident of Rohini Vihar, Near Panni Ki Tanki, Ice Cream Factory Wali Gali, Village Badharana, Sikar Road, Jaipur, rajasthan, Police Station Vishwakarma, Jaipur West.

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----Petitioner

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Versus

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Shri Ratan Lal Son of Shri Bhairuram, Resident of Shiv Mandir Ke Pass, Raigaron Ka Mohalla, Village Keshopura, Post Vaishali Nagar, Ajmer Road, Jaipur- 302021, Rajasthan, Police Station Bhankrota, Jaipur West.

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----Respondent

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For Petitioner(s) : Ms. Sudesh Kasana For Respondent(s) : None present

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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06/03/2024

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Instant Criminal misc. petition under Section 482 CrPC has been filed challenging the order dated 7-11-2023 in case No.84141/2018, Ratan Lal Vs. Kamlesh Kumar Sharma, whereby petitioner’s application u/s.311 CrPC has been dismissed.

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With the consent of counsel for petitioner, petition has been heard finally on merits.

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Briefly stated the facts of case are that non-petitionercomplainant filed one complaint for offence under Section 138 NI Act in the year 2018, against petitioner stating inter alia that on account of personal relations and acquaintance, petitioner took Rs.

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3 lacs from the non-petitioner-complainant for his family and business needs and in order to pay this amount three cheques of

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one lakh each for different dates 06.11.2017, 20.11.2017 and 15.12.2017 were given to the complainant. All three cheques were returned by the bank on account of “funds insufficient” along with bank return memo dated 24.01.2018. Thereafter, non-petitionercomplainant after serving a legal notice upon petitioner, instituted the criminal complaint.

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In the proceedings on the criminal complaint, statement in chief by the non-petitioner-complainant has been recorded way back on 07.01.2020 and since thereafter, the proceedings are being deferred for cross-examination of the complainant by the petitioner-accused. It reveals from the record that at one point of time vide order dated 24.06.2022 the opportunity of crossexamination by the petitioner was closed, however, on filing the application by petitioner under Section 311 Cr.P.C., vide order dated 27.08.2022, one last opportunity was granted to petitioner on cost of Rs. 1,000/- allowing cross-examination of the complainant.

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Thereafter, petitioner did not avail that opportunity nor paid the cost, hence, the trial Court closed the opportunity of crossexamination of the complainant by petitioner vide order dated 17.01.2023. The order dated 17.01.2023 has attained finality.

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Thereafter, again petitioner filed application under Section 311 Cr.P.C. on 16.08.2023, for grant one more opportunity to him for cross-examination of the complainant. This application has been rejected by the trial Court vide order impugned.

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When the instant petition came up before this Court on 13.02.2024, to meet ends of justice, petitioner was asked to

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deposit cost of Rs. 11,000/- to the complainant by way of demand draft within a period of 10 days so that his bona fide may be judged but petitioner did not deposit the amount of Rs. 11,000/in compliance of the order dated 13.02.2024. Later on, the petitioner has filed an application dated 01.03.2024, seeking extension of time to pay the cost amount of Rs. 11,000/- and to deposit the demand draft.

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This Court finds that opportunity of petitioner to crossexamine the complainant has been closed by the trial Court vide order dated 24.06.2022 and thereafter it is not in dispute that the first application dated 14.07.2022 filed by petitioner under Section 311 Cr.P.C., seeking opportunity to allow cross-examination of the complainant by the petitioner had been allowed by the trial Court vide order dated 27.08.2022, but he did not avail that opportunity, hence, again his opportunity to cross-examine the complainant was closed vide impugned order dated 17.01.2023. The said order dated 17.01.2023 has been challenged and has attained finality. 9. The second application of petitioner filed under Section 311 Cr.P.C. on 16.08.2023, seeking the similar nature of relief to allow cross-examination of the complainant, is wholly misplaced and impermissible in law. The trial Court has not committed any illegality or jurisdictional error in dismissing the application vide impugned order dated 07.11.2023. As per record, the opportunity of cross-examination of the complainant, by the petitioneraccused had already been closed by the trial Court vide order dated 17.01.2023 and that order has not been challenged by the petitioner, therefore, challenging the impugned order dismissing

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his second application under Section 311 Cr.P.C. for the similar nature of relief, is of no avail. The trial Court has clearly observed in the impugned order that allowing the second application under Section 311 Cr.P.C. would lead to miscarriage of justice with the complainant.

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Having considered afore-referred factual matrix from the record this Court is also of the considered opinion that the conduct of petitioner is not bona fide and fair rather the endeavour of petitioner has been only to delay the proceedings in the present complaint. Petitioner has not complied with the order dated 13.02.2024 passed by this Court, the cause assigned by the petitioner for not complying with the order dated 13.02.2024 within the prescribe time, has not been fortified by any document. The application seeking extension of time, cannot be treated as bona fide, hence, same is hereby dismissed.

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In view of aforesaid discussion, this is a case where the petitioner-accused himself has lost his opportunity to crossexamine from the complainant and in totality of facts and circumstances, the order impugned does not lead to failure of justice. In such circumstances, this Court is not inclined to exercise its inherent jurisdiction under Section 482 Cr.P.C., to interfere with the impugned order.

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As a final result, the instant criminal miscellaneous petition is hereby dismissed. The criminal complaint is pending since 2018, let the trial Court may make efforts to conclude proceedings of the present complaint expeditiously and possibly within a period of four months after receipt of the copy of this Order, if possible.

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Office is directed to sent a copy of this Order to the trial Court forthwith.

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Stay application or any other application(s), if any, pending stands disposed of.

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(SUDESH BANSAL),J

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Sourav/820

Shri Kamlesh Kumar Sharma Son of Shri Babulal Bagda, v. Shri Ratan Lal Son of Shri Bhairuram

Case brief

What is this about?

What did the court decide?

Shri Kamlesh Kumar Sharma Son of Shri Babulal Bagda, v. Shri Ratan Lal Son of Shri Bhairuram

Case brief

What is this about?

What did the court decide?

What the court decided

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