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Kamal Kishore Joshi S/o Shri Bheru Dan Joshi Versus The State of Rajasthan Through Public Prosecutor Nirmal Nilesh S/o Shri Prabhu Das, Prop. Kunal Textiles, Aryan And Others

2017 (7) TMI 543 - RAJASTHAN HIGH COURT

Complaints under Section 138 of the N.I. Act - Held that:- In the cases at hand, the complainants challenged the orders of return of their complaints by filing the above referred misc. petitions in this Court in the earlier round of litigation. Notices of the misc. petitions were served upon the accused. The court after hearing the learned counsel representing the parties gave explicit permission to the complainants to seek revival of their complaints in the trial court. Pursuant to such directi .....

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set of misc. petitions filed on behalf of the accused is the order dated 26.4.2016 by which, the court directed summoning of the accused persons through warrant of arrest because they failed to appear in the court despite assurance given on their behalf. Though, primafacie, this Court finds no illegality in the said order but in order to secure the ends of justice, the accused persons deserve to be given one opportunity to appear before the trial Court and furnish bail bonds upon which, they sh .....

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ilure to do so, would entitle the court below to secure their attendance by adopting coercive methods. - The trial Court is further directed to expedite the trials and to try and complete the same within a period of one year from the date of submission of copy of this order. - S. B. Criminal Misc(Pet.) No. 3403 / 2016 - Dated:- 29-6-2017 - Sandeep Mehta, J. For the Petitioner : Mr.Manoj Bohra For the Respondent : Mr.Rajesh Bhati, P. P. Mr.Hemant Parmar, Mr.B.R.Gohel S.B. Criminal Misc(Pet.) .....

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/ 2016 S.B. Criminal Misc(Pet.) No. 2186 / 2016 S.B. Criminal Misc(Pet.) No. 2187 / 2016 S.B. Criminal Misc(Pet.) No. 3404 / 2016 S.B. Criminal Misc(Pet.) No. 3405 / 2016 S.B. Criminal Misc(Pet.) No. 3406 / 2016 S.B. Criminal Misc(Pet.) No. 3407 / 2016 S.B. Criminal Misc(Pet.) No. 3408 / 2016 S.B. Criminal Misc(Pet.) No. 3409 / 2016 S.B. Criminal Misc(Pet.) No. 3410 / 2016 S.B. Criminal Misc(Pet.) No. 3411 / 2016 S.B. Criminal Misc(Pet.) No. 3412 / 2016 S.B. Criminal Misc(Pet.) No. 3413 / 2016 .....

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ether by this order. Numerous complaints under Section 138 of the N.I. Act came to be filed in the year 2011 by Sarva Shri Kamal Kishore Joshi, Sunil Chhangani and Mangi Lal Purohit (the complainants) against Nirmal Nilesh and Ena Nitin Bhai (the accused). On 16.1.2011, the trial court took cognizance against the respective accused and summoned them to face trial for the offence under Section 138 of the N.I. Act. The accused put in appearance and were enlarged on bail. During pendency of the pro .....

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nts in original be returned to the respective complainant for being prosecuted in the competent court. The complainants thereupon preferred separate misc. petitions under Section 482 Cr.P.C. in this Court being aggrieved of the order dated 30.1.2015 whereby, their complaints were directed to be returned to them. These misc. petitions were tagged together in a bunch and were listed before this Court on 15.12.2015 after service upon the accused party. On that day, learned counsel for the petitione .....

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en to the petitioners to file an application before the concerned Magistrate for revival of their complaints in the said Court in light of the recent amendment brought around in the Negotiable Instruments Act. The prayer so made is justified. The misc. petitions thus stand disposed of as withdrawn with the liberty as prayed for. In case the petitioners move an application before the concerned Magistrate in the above terms, the same shall be decided in light of amendment effected in the Negotiabl .....

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the Negotiable Instruments Act, it is directed that the original orders passed by the trial court shall be returned back to the petitioner s counsel after retaining a certified copy thereof on the record. While deciding these misc. petitions, this Court gave liberty to the respective complainants to move applications for revival of their complaints while lifting the bar of limitation if any. Pursuant thereto, the complainants filed applications for revival of their complaints and the trial cour .....

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rough warrant of arrest. The said order dated 27.4.2016 has been challenged by the respective accused persons by way of misc. petitions Nos.2169/2016, 2174/2016, 2175/2016, 2176/2016, 2177/2016, 2178/2016, 2179/2016, 2180/2016, 2181/2016, 2182/2016, 2183/2016, 2184/2016, 2185/2016, 2186/2016, 2187/2016. The complainants have thereafter moved another set of misc. petitions Nos.3403/2016, 3404/2016, 3405/2016, 3406/2016, 3407/2016, 3408/2016, 3409/2016, 3410/2016, 3411/2016, 3412/2016, 3413/2016, .....

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s a non-speaking order and thus, should be quashed and set aside. They further urged that the trial court lacked jurisdiction to revive the original complaints and the respective complainants, if they so desired should have filed fresh complaints with applications for condonation of delay and that the trial court could have proceeded further only if the delay was explained satisfactorily. Relying on the judgment passed by the Hon'ble Supreme Court in the case of Pooja Ravinder Devidasani Vs. .....

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Hemant Parmar and contended that the orders taking cognizance passed by the trial court were never challenged by the accused and thus, the same have attained finality. He contended that during a transient phase, complaints under Section 138 of N.I. Act presented all over the country, were ordered to be returned back on the basis of Hon'ble Supreme Court Judgment in the case of Dashrath Rupsingh Rathod s case (supra). He urged that the5 ambiguity in the situation was clarified beyond all prob .....

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of Dashrath Rupsingh Rathod s case (supra), the complaints were returned for presentation to another court. However, with the introduction of above amendment, the complainants became entitled to resubmit their complaints in the original court in view of the liberty granted to them by this Court in the earlier round of litigation. He further urged that the objection raised by the accused persons that the complainants did not file any formal application for revival of the complaint in light of th .....

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in appearance in the restored proceedings through their counsel and initially sought exemption from personal appearance. As they failed to put in appearance despite the liberty granted to them, the trial court was perfectly justified in issuing warrant of arrest against the accused persons. He thus, urged that the misc. petitions preferred on behalf of the complainants should be accepted whereas, the ones filed on behalf of the accused be rejected. I have given my thoughtful consideration to th .....

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said judgment stands virtually nullified with the express amendment brought around in Section 142 of the N.I. Act in the year 2015 which reads below:- 4. In the principal Act, after section 142, the following section shall be inserted, namely:- 142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the N .....

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under subsection (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the c .....

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inance, 2015, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act. The said amendment bears an express savings clause in subsection 5, which provides that anything done or any action taken under the principal Act shall be deemed to have been done or taken under the corresponding pro .....

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take their complaints back on record and to proceed against the accused as if the complaints had never been returned. In this background, the argument advanced by Shri Manoj Bohra that no illegality was committed by the court below while accepting the resubmitted complaints and reregistering the same on the original number, is palpable. On the contrary, the contention putforth by Sarva Shri Gohel and Parmar that the order taking cognizance is bad in the eye of law and that the complainants would .....

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used persons appeared in the court below and furnished bail bonds but did not raise any objection against the order taking cognizance which has obviously attained finality. The subsequent sequence of events i.e. the return of the complaints and resubmission thereof was simply a transitional phase which lost significance with the introduction of the above-referred amendment in Section 142 of the N.I. Act pursuant whereto, the actions taken earlier by the court concerned under the N.I. Act even if .....

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