WALI MOHD YATOO Vs. GH RASOOL MIR

JUDGEMENT

(1.) Respondent filed a complaint under section 138 Negotiable Instrument Act of 1881 (for short Act) against the petitioner before the Court of Judicial Magistrate Pattan on 30.5.2006. The Ld. Magistrate after taking cognizance of the offence under section 138 of the 'Act' issued process against the petitioner. On 16.10.2006 the statement of the petitioner-accused was recorded under section 242 Cr.P.C. Since the petitioner-accused denied allegations made against him the court directed the respondent-complainant to produce the evidence to prove the allegations made in the complaint. The petitioner-accused thereafter did not appear before the trial court on many dates of hearing and on applications being filed he was exempted from personal appearance only for some dates of hearings. On 13.2.2007 warrants were ordered to be issued for securing presence of petitioner. On 26.2.2007 the trial Court initiated process in terms of Section 514 Cr.P.C. On 19.10.2007 petitioner-ac cused again absented though application was field seeking exemption from per sonal appearance but the same was rejected by the trial Court and arrest warrant was issued. The statement of respondent-complainant was recorded by the trial Court on 11.12.2006. The statement of one Syed Mubeen Shah complainant's witness was recorded by the trial court on 15.9.2008 and statement of Mohd. Amin Malik was recorded on 30.3.2009. Statement of other witness of respondent-com plainant was examined by the court on 14.6.2011. The statement of one Shabir Ahmed Bhat who appeared as witness of the petitioner-accused was recorded on 21.10.2011. Thereafter on 16.12.2011 statement of one of the witness of petitioner-accused Javid Ahmed was also recorded by the trial court. Statement of another witness of petitioner-accused was recorded by the trial court on 13.2.2012. After the closure of the evidence of parties on 31.3.2012 petitioner-accuseds statement was recorded under section 342 Cr.P.C. The Court vide its order dated 31.3.2012 fixed the case for hearing of final arguments.

(2.) Petitioner-Accused filed this petition before this Court on 19.4.2012 i.e. after the date his statement under section 342 Cr.P.C. was recorded and case was ordered to be listed for final arguments. It may not be out of place to mention here that vide its order dated 31.5.2010 Ld. Trial Magistate rejected the objection raised by the petitioner-accused that the complaint would require to be dismissed as notice in terms of Section 138 of the Act of 1881 was served beyond time. This order was not challenged by petitioner.

(3.) In this petition it is prayed that order of taking cognizance in the complaint dated 30.5.2006 be quashed and the subsequent proceedings be also quashed. Ld. Counsel for the petitioner challenged the trial court proceedings on the following grounds:-