KULDEEP SINGH Vs. VIKAS GUPTA

JUDGEMENT

(1.) Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), petitioner seeks quashing of order dated 6th April, 2013 passed by learned District Judicial Mobile Magistrate (Traffic) Udhampur, in an application filed by the respondent under Section 540 of the Code of Criminal Procedure, Svt. 1989 in Criminal Complaint titled 'Mohan Lal vs. Kuldeep Singh' pending before the learned Magistrate, on the ground that the said order suffers from non-application of mind and is illegal, unjust and against the well-established principles as applicable for the exercise of jurisdiction vested to a Criminal Court under the Code of Criminal Procedure, Svt.1989.

(2.) The case of the petitioner is that one Mohan Lal (Deceased) preferred a criminal complaint against the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act in the year 2003 and the learned District Judicial Mobile Magistrate (Traffic) Udhampur, after the filing of complaint took cognizance of the complaint and the process came to be issued in the matter. It is stated that the petitioner pursuant to service of notice, caused his appearance in the matter and furnished bail bond & his personal bond to the satisfaction of the learned District Judicial Mobile Magistrate (Traffic), Udhampur and the original complainant produced his witnesses. It is stated that at the time of filing of the complaint the original complainant (Mohan Lal) got his preliminary statement recorded in addition to one witness, namely, Ram Purshotam. But during the course of trial, when the complainant was leading evidence the complainant has chosen not to appear as his own witness and the witness, namely, Ram Purshotam, whose preliminary statement was recorded at the time of filing of the complainant, was also not produced by the complainant. It is further stated that the evidence of the complainant was closed and the trial Court, after recording the statement of petitioner under Section 342 Cr.P.C. granted opportunity to the petitioner to lead defence evidence, which was eventually produced by the petitioner and thereafter the matter was posted for final arguments. However, during the pendency of the complaint, respondent was permitted by the Court below to prosecute the complaint as legal heir of the original complainant. It is stated that the learned District Judicial Mobile Magistrate (Traffic ) Udhampur, heard the arguments on behalf of complainant an when counsel appearing for the petitioner informed the Court in respect of the inadmissibility of the evidence in respect of preliminary statement(s) of original complainantMohan Lal & one Ram Purshotam and the matter was posted for arguments on behalf of the petitioner, the respondent preferred an application on March 09, 2013 seeking to produce witness, namely, Ram Purshotam for cross-examination as well as the son of deceased complainant (Mohan Lal), namely, Vikas Gupta. It is stated that the said application preferred by the respondent was resisted by the petitioner by filing Objections/Reply to the same.

(3.) Learned counsel for the petitioner states that the trial Court while passing the order dated 06.04.2013 in an application filed by the respondent under Section 540 of the Code of Criminal Procedure, Svt. 1989 has thoroughly ignored the objections filed by the petitioner herein and has failed to appreciate the correct law while deciding the application filed by the respondent. In support of his contention, learned counsel has placed reliance on State of Gujarat & ors. Vs. Dilipbhai Shaligram Patil reported in 2006 (4) S.C.T. 536; Prof. V. M. Aniyan Vs. The University of Calicut and another reported in, 2017 2 KerLJ 837; M/s Kanoria Chemicals and Industries Ltd. Etc. Vs. U. P. State Electricity Board reported in, 1997 2 RCR(Civ) 641; Union of India and ors. Vs. Narender Singh reported in, 2005 6 SCC 106; and Union of India Vs. G. R. Prabhavalkar reported in, 1973 AIR(SC) 2102.