IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No. 150/2009 Date of decision: 23. 3. 2010 Karam Singh ….Petitioner Versus Ram Krishan Sharma ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Petitioner: Mr. R.L. Chaudhary, Advocate. For the respondent : Mr. Anup Rattan, Advocate. Surinder Singh (Oral) This is a petition under Section 482 of the Code of Criminal Procedure against the order dated 10.3.2008, passed by the learned Chief Judicial magistrate in case No. 6-1/2004 titled Ram Krishan Sharma versus Karam Singh, under Section 138 of the Negotiable Instruments Act, 1881, whereby the defence of the petitioner was closed by the order of the court, after granting various opportunities. Heard and gone through the record. A perusal of the record shows that after closure of the prosecution evidence, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - petitioner herein was examined under Section 313 of the Code of Criminal Procedure on 28.6. 2007. Thereafter, the petitioner intended to lead evidence in defence and the case was adjourned for 20.8.2007, on which date, neither petitioner nor his witnesses were present. Thereafter the case was adjourned for 13.9.2007 for his evidence. Even on 13.9.2007, petitioner absented himself and an application was moved for his exemption, which was allowed and the case was adjourned for 14.11.2007 for his evidence. The petitioner did not take any step and even on 14.11.2007 his evidence was not present. Again, he sought time and the case was adjourned for 3.1.2008. Learned counsel for the complainant/respondent objected to further adjournment on the ground that the accused was delaying the matter on one pretext or the other. After hearing the parties, learned trial Court passed a detailed order which is reproduced hereunder:- “3.1.2008. Present:-Complainant in person with counsel Shri K.L. Thakur, Advocate Accused not present but represented by Shri narender Kumar, Advocate. Accused not present. No DWs present. DWs also not summoned as steps not taken. The learned counsel seeks time to examine the witnesses in defence. The learned counsel for the complainant states that accused is delaying the matter on one pretext or the other. I have heard the - 3 - learned counsel and perused the file with care. The accused was summoned by this court to face trial for offence punishable under Section 138 of the Negotiable Instruments Act. The evidence of complainant concluded on 30.4.2007 and case was adjourned for recording statement of accused on 11.6.2007. The accused visited Regional Hospital Kulllu on 10./6.2007, one day before the case was enlisted for recording his statement apparently for some ailment and was advised medical rest for two days. Then statement of accused was recorded on 28.6.2007 and the case was enlisted for defence evidence on 20.8.2007. Again two days before his case was enlisted for his evidence he visited Regional hospital Kullu with complaints of excessive vomiting and as such the case was enlisted for 13.9.2007 for recording the defence evidence. On 13.9.2007 the accused again visited Regional Hospital Kullu for check-up and got himself admitted there. The case was adjourned to 14.11.2007 for recording defence witnesses. On that date witnesses of the defence were not present and the case was adjourned for today for examining the defence witnesses. It appears that accused again visited Regional Hospital Kullu on 2.1.2008 apparently for some ailment. It is surprising that accused gets ailment one or two days before the case is enlisted for hearing. However, in the interest of justice this last opportunity is given to accused to produce his entire evidence of all sort on next date of hearing, failing which, his evidence will be closed. Now put up for defence evidence on 22.1.2008” As is evident from the aforesaid order, one more opportunity was given to the - 4 - petitioner for adducing defence evidence. On 22.1.2008 again his evidence was not present and more opportunity was accorded subject to cost and the case was adjourned for 10.3.2008. It was the last opportunity. The court had shown leniency more than enough. But it appears to have been misused because even on 10.3.2008, no defence witness was present nor any steps were taken, thereafter the learned trial Court was constrained to close the defence evidence and the case was listed for final arguments. The entire history of the case, as stated above, after recording statement of the petitioner under Section 313 of the Code of Criminal Procedure, reveals that the petitioner was able to gain around three years to adduce defence evidence. Thus, he deserves no further concession in the matter because of his own act and conduct. He was able to drag the litigation for three long years and the Court had shown undeserved leniency. Therefore, granting one more opportunity to him, as now requested by the learned counsel for the petitioner, would be abuse of process and unfair to the opposite party. Therefore, the petition is dismissed. Interim order granted on 18.11.2009 is vacated. - 5 - Parties to appear before the learned trial Court on 5.4.2010. Learned trial court is directed to proceed in the matter forthwith and decide it finally before the end of April, 2010. Record of the learned trial Court be sent back forthwith so as to reach the court on or before the date fixed. March 23, 2010 (Surinder Singh),J (cm)