ASHOK KUMAR. Vs. PAL JEWELLERS

JUDGEMENT

(1.) This petition has been preferred by the petitioner against impugned order dated 28.8.2019 passed by learned Judicial Magistrate 1st Class, Court No. 2 Amb, District Una, H.P., whereby prayer of petitioner/accused to lead evidence in defence has been rejected in view of his statement recorded on 14.2.2019 before framing notice of accusation, wherein, accepting liability, he has prayed time to pay the cheque amount to the respondent/complainant in 4-5 installments.

(2.) Brief facts of the case are that respondent-complainant has filed a complaint under Section 138 of Negotiable Instruments Act (hereinafter referred to as the ' NI Act ' in short) against the petitioner/accused, wherein, after service, petitioner appeared and accepted his liability to pay the cheque amount, but had prayed some time for payment thereof within 4-5 installments with further undertaking to make first installment of Rs.15,000/- in the month of March. Thereafter, matter was adjourned for 30.3.2019, on which date, accepting prayer of the petitioner- accused, seeking time to make payment, case was adjourned for 10.4.2019. Whether the reporters of the local papers may be allowed to see the Judgment? Yes On 10.4.2019, petitioner/accused did not appear and his application for exemption was allowed and case was fixed for his presence on 20.4.2019. On 20.4.2019, notice of accusation was framed and put to the accused, wherein he pleaded not guilty and case was fixed for recording of evidence of complainant on 23.7.2019. Evidence of complainant was closed on 27.8.2019 and thereafter statement of petitioner/accused under Section 313 Cr.P.C. was recorded on 28.8.2019 and in his statement, petitioner/accused, in answer to question No. 10, expressed his intention to lead evidence in defence, but his prayer was rejected by the Magistrate for his undertaking recorded on 14.2.2019, accepting the liability to pay the cheque amount.

(3.) No doubt petitioner/accused has admitted his liability for payment of cheque amount, before framing of notice of accusation, but thereafter he has claimed that he has made the payment thereof on 20.4.2019. Learned counsel for the respondent/complainant has pointed out that after giving undertaking on 14.2.2019, petitioner-accused has prayed time for payment, which was extended up to 20.4.2019, but for non-payment of cheque amount on that date, notice of accusation was framed against him, wherein he instead of pleading guilty had claimed trial and on that date also he did not say that he had already made the payment and further that case was fixed for evidence of complainant on 23.7.2019 and 27.8.2019 and complainant had appeared as a witness and was cross-examined on behalf of petitioner/accused on 27.8.2019 and on that date in cross- not even a single suggestion was put to the complainant about the payment of the entire cheque amount by the petitioner/accused on 20.4.2019 and now suddenly at the time of recording of his statement under Section 313 Cr.P.C. he has come forward with the plea that he had made the payment on 20.4.2019 after visiting the shop of respondent/complainant and expressed his intention to lead evidence in defence. He has submitted that for the aforesaid circumstances the plea of the petitioner/accused that he had made the payment to respondent is false and he is not entitled to lead any evidence and, therefore, and particularly keeping in view the undertaking given by the petitioner/accused on 14.2.2019, learned Magistrate has rightly rejected his prayer to lead evidence.