Jharkhand High Court
Complaint Appeal No. 3 of 1999 (R)
(Against the judgment of acquittal dated 28.04.1999 passed by Shri Shambhu Kumar Verma, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 197 of 1995, T.R. No. 558 of 1999.)
Ajit Kothari ………… Appellant
1. Ram Naresh Prasad
2. The State of Bihar ………. Respondents
For the Appellant : M/S. Chandrajit Mukherjee
For the Respondent-State : Mr. Tapas Kr. Roy, A.P.P.
For the Opp. Party : None
P R E S EN T
THE HON’BLE MR. JUSTICE PRADEEP KUMAR
By court: Heard learned counsel for the appellant-complainant and learned counsel for the State. Nobody appears on behalf of the opposite party.
2. This appeal is directed against the judgment of acquittal dated 28.04.1999
passed by Shri Shambhu Kumar Verma, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 197 of 1995, T.R. No. 558 of 1999, by which judgment, the learned Judicial Magistrate acquitted the accused- respondent No.2 on the ground that in spite of several opportunities given to the complainant, they failed to produce any of the witnesses for cross examination after framing of charge after the appearance of the accused.
3. It is submitted by learned counsel for the appellant that since the charges were framed under Section 420 and 138 of the N.I. Act, the case was triable under the provisions of the Trial of warrant cases- By Magistrates envisaged in the Chapter XIX of the Code of Criminal Procedure and as per the Section 246, the procedure led down under Section 246, Sub Para 4 and 5, where Para 4 states as under:
“If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken.”
Para 5 states as under:
“If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.”
Since, according to him, no wish was given by the accused, the acquittal of the accused-respondent no.2 is fit to be set aside.
4. On the other hand, learned counsel for the State has opposed the same and submitted that it will appear from the lower court record order sheet that after the wish was disclosed, the court fixed the date of production of the witnesses which the prosecution failed to do so.
5. After hearing both the parties and after going through the records, I find that the accused persons, in compliance of issuance of summons, appeared in the court by the court’s order dated 25.06.1997, the court directed to the complainant to produce witnesses for cross examination after charge and after 3-4 days, only one witness was produced on 24.09.1997 i.e. Ajit Kothari and after cross examination, he was discharged and he was directed to produce the other witnesses, but it appears that in spite of giving several dates right from 1997 till 1998, when he failed to produce any of the witnesses, then, on 09.03.1999, the prosecution case was closed and the case was fixed for defence and arguments on the next date, the arguments were heard and the judgment was passed.
6. I find that the complainant in spite of several dates for two years had failed to produce any of the witnesses in compliance with the order of the court below. In that view of the matter, he cannot say taking plea of Section 246, Sub Para 4 and 5 that the accused never wanted the cross examination of other witnesses.
7. Thus, I find and no illegality and impropriety in the impugned order of the trial court and since there is no merit in this appeal, this Complaint appeal is accordingly dismissed.
[Pradeep Kumar, J.] Jharkhand High Court, Ranchi The 17th December, 2009 R.K./NAFR