SANDEEP GUPTA Vs. KANHAIYA LAL KAMRANI

JUDGEMENT

(1.) The present petition under Sec. 482 of CrPC has been preferred by applicant-accused assailing the order dtd. 10/3/2016 passed by the Chief Judicial Magistrate, Dhamtari whereby the application under Sec. 138(b) of the Negotiable Instruments Act ('N.I. Act', for short) filed by him was rejected. Against the said order dtd. 10/3/2016, a revision petition was also preferred by him and by order dtd. 28/7/2016 the Revisional Court, i.e., Sessions Judge, Dhamtari, also dismissed the said revision.

(2.) Counsel for the Applicant submits that it is a case where the Court below ought to have considered the application under Sec. 138(b) of the N.I. Act preferred by the Applicant on its merits and should have gone into the question of maintainability of the complaint case itself at the first instance and thereafter should have proceeded further. According to him, the complaint itself has been filed beyond the prescribed period of limitation under the N.I. Act and therefore it ought to have been decided at the preliminary stage before going into the merits of the case. He further submits that the Trial Court as well as the Revisional Court both have committed an error of law in not appreciating the contents of the complaint and also the dates which are relevant for adjudication of the case at the first instance and as a result the Applicant will be forced to undergo the entire trauma of trial unnecessarily for no fault of his when the complaint itself was not maintainable.

(3.) Having considered the contentions put forth by the Counsel for the Applicant and also taking note of the fact that the impugned order of the Trial Court is the order dtd. 10/3/2016 and by now admittedly as has been submitted by the Counsel for the Applicant himself that the Trial has already progressed substantially and is in the midst of recording of evidence on behalf of the complainant. Further, on consideration of the application under Sec. 138(b) of the N.I. Act, it reflects that the contentions raised by the Applicant all are matters of fact which can be thrashed out only after recording of the evidence and that which would be extracted from cross-examination of the complainant and which at this juncture cannot be decided only on the basis of pleading without evidence.