DR. SHEENA SHAH Vs. NAZIR AHMAD DAR

JUDGEMENT

(1.) These four petitions under Section 561A Cr. PC, have been filed against a common judgment dated 04.10.2017, delivered in four Appeals by the Court of the learned Sessions Jude, Budgam, whereby the Appeals have been allowed with the direction to the trial Court, by an order of remand, to proceed in accordance with the procedure prescribed under Section 244 Cr. PC. The learned Sessions Court has further directed the trial Court to proceed from the stage of hearing the respondent-accused and allow them to lead defence evidence and thereafter to pass a fresh judgment. It is this judgment of the learned Sessions Judge that has been questioned in these petitions.

(2.) The learned counsel for the petitioners has argued that the learned Sessions Judge was not required to direct the trial Court to proceed in accordance with the procedure prescribed under Section 244 Cr. PC. It is contended that the trial Court has granted opportunity to the respondent-accused to lead evidence in defence but since no witness was present on the date of hearing fixed by the trial Court, therefore, the order of conviction against the respondent-accused has been passed validly. It is also contended that the respondent-accused failed to produce the evidence on the date fixed and no witness was present nor were any steps taken for summoning any witness. In the Memo of Appeal filed by the respondent-accused it is nowhere stated that the trial Court declined to accept the defence evidence on the date of hearing fixed. In these circumstances, the counsel has urged that no prejudice can be said to have been caused to the respondent-accused. The case against the respondent-accused stands proved beyond any shadow of reasonable doubt. The respondent-accused in his statement before the Court has admitted the issuance of cheques and the liability. The respondent-accused, however, denied the receipt of the notice and thus claimed to be tried. The trial Court has committed error of law by passing the order of conviction in the four Appeals as the respondent-accused is to suffer imprisonment only for a period of two years, as the sentence in one case would run concurrently with other cases as well despite the fact that the complaints in all the cases are different and so are the cheques issued by the respondent-accused. This has caused prejudice to the petitioner complainant.

(3.) Per contra, the learned counsel for the respondent-accused has submitted that the order of the learned Sessions Judge is assailable. The learned Sessions Judge has dealt with the case in accordance with law and that the learned Judge has rightly arrived at the conclusions that the respondent-accused was entitled to adduce evidence in defence which opportunity was not granted to him by the trial Court as required under Section 244 Cr. PC. In these circumstances filing of the petition under Section 561-A Cr. PC is misconceived. The respondentaccused is prejudiced as he has been denied opportunity and that in his statement before the Court he had claimed to be tried.