1 Rule returnable forthwith. Ms. Chandarana the learned additional public prosecutor wavies service of notice of rule for and on behalf of the respondent No.1 - the State of Gujarat. It appears from the affidavit filed by the applicant herein - the original complainant that the respondent No.2 - the original accused has refused to accept the notice issued by this Court.
2 By this application under Article 227 of the Constitution of India, the applicant - the original complainant has prayed for the following reliefs:
7a) Your Lordships may be pleased to admit the petition.
R/SCR.A/599/2015 ORDER
b) Your lordship may be pleased to allow this Special Criminal Application and issue any appropriate writ, order or direction and thereby quashed and set aside the order dated 24/12/2014 passed by the 4th Add. District and Sessions Judge, Vadodara in Criminal Revision Application No.186 of 2014.
c) Your Lordship pleased to stay the execution, implementation and operation of the order dated 24/12/2014 passed by the 4th Add. District and Sessions Judge, Vadodara in Criminal Revision Application 186 of 2014, till pending admission, hearing and final disposal of this petition;
d) Alternatively, Your lordship may be pleased to pass any appropriate order, direct and/or writ for expedite completion of trial of the criminal complaint no.282/2005, pending before Ld. Add. Chief Judicial Magistrate, Vadodara.
e) Your Lordships may be pleased to grant any other and further relief as deemed just and proper in the interest of justice."
3 The applicant herein lodged a private complaint in the Court of the learned Judicial Magistrate, First Class, Vadodara for the offence punishable under Section 138 of the Negotiable Instruments Act, which came to be registered as the Criminal Case No.282 of 2005.
4 It appears from the materials on record that at the fag end of the trial i.e. at the stage of the recording of the further statement of the accused, an application came to be filed before the trial Court Exh.123 with a prayer that the cheque in question be sent for the handwriting expert's opinion since except the signature of the accused on the cheque, the other writings on the body of the cheque were disputed by the accused. The application Exh.123 was adjudicated by the trial Court and vide order dated 10.11.2014, the Page 2 of 5 R/SCR.A/599/2015 ORDER same was ordered to be rejected with costs of Rs.10,000/.
5 The accused being dissatisfied with the order passed by the learned Magistrate challenged the order before the Sessions Court by filing the Criminal Revision Application No.186 of 2014. The learned 4th Additional Sessions Judger, Vadodara, vide order dated 24.12.2014 allowed the revision application and thereby, quashed and set aside the order passed by the learned Magistrate rejecting the application Exh.123.
6 Being dissatisfied, the applicant - the original complainant has come up with this application.
7 Mr. Manthan Bhatt, the learned advocate appearing for the applicant submitted that the learned Sessions Judge committed a serious error in allowing the revision application and passing the impugned order. Mr. Bhatt submitted that once the signature of the accused is not in dispute, whether the other writings on the body of the cheque are of the handwritings of the accused or not is not of much significance. He submitted that had it been a case of the accused that his signature on the cheque was forged, then probably the accused would be justified in asking the court to refer the cheque for the opinion of the handwriting expert.
8 He submitted that these all are dilatory tactics adopted by the accused only with a view to delay the trial. He submitted that the impugned order deserves to be quashed.
applicant and having gone through the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned order.
10 The following facts are not in dispute:
10.1 The complaint is of the year 2005.
10.2 At no point of time till the conclusion of the cross examination of the complainant, the issue with regard to the handwriting on the cheque was raised by the accused. 10.3 It appears that the crossexamination of the complainant got over in the year 2013. Thereafter, the accused failed to remain present before the trial Court. It is only when the nonbailable warrants were issued, the accused appeared before the Court. No sooner, he appeared before the trial Court pursuant to the non bailable warrants, then he filed an application Exh.123.
11 I am of the view that the discretion exercised by the learned Sessions Judge could not be termed as judicious. I find substance in the submissions of the learned advocate Mr. Bhatt that these are all dilatory tactics being adopted by the accused. On one ground or the other, the accused is not allowing the trial Court to proceed further with the matter and conclude the trial.
12 In the result this application is allowed. The impugned order passed by the learned Sessions Judge dated 24.12.2014 is hereby quashed. The order passed by the learned Magistrate dated 10.11.2014 below Exh.123 is hereby confirmed.
R/SCR.A/599/2015 ORDER 13 The trial Court is directed to proceed further with the
Criminal Case No.282 of 2005 expeditiously and see to it that the same is disposed of on or before the 31st July 2015.
14 Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 5 of 5