Dhirendra Kumar Singh v. The State of Jharkhand

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Mr. Raj Vardhan, Advocate For the State :- Mr. Satish Prasad, Advocate For the O.P.No.2 :- Mr. Achyut Swaroop Mishra, Advocate ---- 7/08.09.2022 This petition has been filed for quashing of the order dated

22.01.2019 passed by the learned Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No.1123 of 2016 whereby petition filed by the petitioner under section 254(2) of the Cr.P.C was dismissed and also prayed for quashing of the order dated 04.05.2019 passed by the learned Sessions Judge, Hazaribagh in Criminal Revision preferred by the petitioner against the order dated 22.01.2019 in the said complaint case was dismissed and the order of learned trial court has been affirmed, pending in the court of learned Judicial Magistrate, 1st Class, Hazaribagh. Learned counsel for the petitioner submits that the petitioner has not made any transaction with the complaint. The petitioner has informed to the Branch Manager, Bank of Baroda, Tekari Road, Gaya regarding misplaced cheque nos.000005, 000006, 000007, 000008, 000009, 0000010, from Account No.52830200000083 on

25.4.2016 contained in Annexure-2 and the said request was again made to the Branch Manager on 14.12.2017 which has been disclosed in paragraph no.7 of the petition. He submits that the petitioner has again made statement on oath in the court of learned Judicial Magistrate on

13.7.2018 and the petitioner was cross examined on 13.11.2018. He 2 submits that the petition filed under section 254 Cr.P.C which has been rejected by the learned Judicial Magistrate by order dated 22.1.2019. He submits that the said order was challenged before the learned Sessions Judge and in Cr.Revision No.36 of 2019 the learned Sessions Judge has been pleased to dismiss the revision petition by order dated 04.5.2019. He submits that the bonafide petition has been filed and without any cogent reason both the orders have been passed. Mr. Mishra, the learned counsel appearing for the O.P.No.2 submits that there is no illegality in the impugned orders. The learned court has rightly passed the orders. He submits that in the garb of section 482 Cr.P.C this is second revision petition which is not maintainable. He submits that this Court may not interfere in the matter. Mr. Prasad, the learned counsel for the respondent State submits that the case is arising under section 138 of the Negotiable Instruments Act and the case is filed on the basis of complaint.

In view of submission of the learned counsel for the parties, this Court has perused the impugned orders passed by the learned courts. On perusal of the impugned order dated 22.1.2019 it transpires that the learned trial court has dismissed the petition on the ground that this is a complaint case and in the complaint case only complainant is required to prove his case and in that view of the matter it is not fruitful to call the witness on the prayer of the defence. It appears that this reason does not sound good. The learned revisional court has also upheld the order of the learned trial court. There is no doubt that any criminal proceeding is required to be disposed of at the earliest and both the learned courts has to apply its judicial minds. The proceeding is pending and only for recalling the witness this petition has been filed. In a criminal case, the learned court is required to find out truth and for finding out the truth the petition has been filed for recalling the Branch 3 Manager, in the interest of justice, it is desirable that the said witness is required to be called.

Section 254 Cr.P.C also speaks that the accused is also required to be called and to take all such evidences as he produces in his evidence and sub-section 3 of the said section provides of summoning of the witness at the reasonable expenses of witness. It is well settled that after the revision, petition filed under section 482 Cr.P.C. is not maintainable, however, at the same time, if it has been brought to the notice of the Court and the Court finds that injustice has been done, the Court under section 482 Cr.P.C can interfere. In view of the above facts and considering the spirit of section 254 of Cr.P.C, impugned orders 22.01.2019 and 4.5.2019 passed by the learned Judicial Magistrate, 1st Class, Hazaribagh and the learned Sessions Judge, Hazaribagh in Complaint Case No.1123 of 2016 and Criminal Revision No.36 of 2018 respectively, pending in the court of learned Judicial Magistrate, 1st Class, Hazaribagh are quashed.

The learned court shall issue summons for calling the said witness as disclosed in the petition and the petitioner shall deposit a cost of Rs.2500/- as travelling cost of the said witness within a week from today. It is expected that the learned court after calling the said witness shall examine him as early as possible. It is also expected that the entire exercise shall be concluded within six weeks from today. Cr.M.P. No.2037 of 2019 stands disposed of. I.A. if any also stands disposed of. Interim order of stay, if any, also stands vacated. ( Sanjay Kumar Dwivedi, J.) SI/