JUDGMENT

PUSHPENDRA SINGH BHATI, J. –

1. This Criminal Revision Petition has been preferred under Section 397 read with 401 Cr.P.C. claiming the following relief:

“It is, therefore, most respectfully prayed that this revision petition filed by the petitioner may kindly be allowed and order impugned dated 23.12.2021 may kindly be declared illegal and the same may kindly be quashed and set aside; and

(ii) Further the application filed by the petitioner U/s 394 Cr.P.C. may kindly be allowed, and appellate court may kindly be directed to call the witness Dilbagh Singh and record his evidence, or remand the matter before the trial court for recording of evidence.

(iii) Any other relief, direction that Hon’ble Court may feel just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner.”

2. Brief facts of the case as noticed by this Court are that a complaint under Section 138 of Negotiable Instruments Act was filed, in which, the complainant has alleged that the present petitioner had taken an amount of Rs.7.50 Lakh from the complainant Bachan Singh and gave him a cheque bearing No.062318 dated 15.08.2014. In the proceedings that ensued, the learned trial court recorded the statement of the complainant and convicted the petitioner on 25.01.2019 and imposed one year’s sentence and fine of Rs.14 lakhs.

3. The bone of contention now is the application, preferred during appeal, under Section 391 Cr.P.C. for calling of additional evidence particularly, that of Dilbagh Singh, who could not depose before the learned trial Court.

4. Learned counsel for the petitioner has submitted that Dilbagh Singh was called by the court on number of occasions from 14.09.2016 to 04.12.2018, but despite, the court’s calling, he did not come and then the onus was shifted upon the present petitioner to calling/call him, and thereafter, the evidence of defence was closed and the conviction was made.

5. Learned counsel for the petitioner further submitted that the learned trial court ought to have realized that it was beyond the power and capacity of the present petitioner, to have called the said Dilbagh Singh, despite his being a critical and crucial witness, to sustain his defence as Dilbagh Singh was the person, through whom the amount was to be paid to the complainant.

6. Learned counsel for the petitioner has relied upon the judgment rendered by this Hon’ble Court in State of Rajasthan Vs. Murari Lal & 2 Ors. reported in 2002(3) WLN 261, relevant portion of which is reproduced hereunder:

“12. Andhra Pradesh High Court in the case of The Public Prosecutor v. Gundu Rao (1), held that the prosecution witnesses if not produced, it is the duty of the Magistrate to take coercive steps to compel their attendance and acquittal on that ground was not justified.

13. Similarly Mysore High Court in the case of The State of Mysore v. Kalilulla (2), has held that order of acquittal on the ground of non-appearance of prosecution witnesses cannot be justified. Similar view was taken by Kerala High Court in the case of State of Kerala v. Gopalan (3). A Full Bench of Madras High Court in the case of the The State v. Veerappan and Ors. (4), also took a view that acquittal of accused persons merely on the ground of non-production of evidence by the prosecution is not permissible.

14. In my view also, in the administration of criminal justice, a duty is cast upon the Court to procure the attendance of witnesses though primarily responsibility of producing the witnesses is on the prosecution. The Magistrate should not feel helpless in such situation and should exercise' its discretion to procure the attendance of witnesses. If the prosecution by its negligence or otherwise fails to discharge its responsibility in producing the witnesses, it is incumbent on the court to examine such witnesses as it considers necessary for the ends of justice.

15. Apart from that, as slated above, dereliction of duty on me part of learned CJM who passed the order of acquittal on 11.10.99 is clearly established and for the above reasons, the order of acquittal in the present case cannot be sustained and is liable to be set aside.”

7. Learned counsel for the respondent opposed the submissions made on behalf of the petitioner.

8. After hearing learned counsel for the parties as well as perusing the record of the case along with the precedent law cited at the Bar, this Court finds that the decision arrived at by the learned trial court is justified because ultimately the trial under Section 138 has to be a summary trial and if sufficient evidence  to convict and the preponderance of probability is met, then there is no reason for creating an elaborate trial where none is required. Moreover, the petitioner could not point out a single reason as to why the liability and presumptions arising out of Section 138 were not made out against him. Further, the delay in the proceedings of appeal by entertaining Section 391 Cr.P.C. at this stage by the learned trial court, would have been detrimental to the cause of justice.

9. In view of the above, no interference in the present revision is called for and the same is accordingly dismissed. All pending applications stand disposed of.

Petition dismissed.

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