District Excise Officer v. Govind Ram Jat Punia

Sandeep Mehta, J.:— These three revisions involve common questions of law and facts and are thus being decided by this single order.

2. The petitioner Excise Department lodged five separate complaints against Govind Ram (respondent herein), Bhanwar Lal and Bhagirath for the offences under Sections 138 of the Negotiable Instrument Act and Section 420 I.P.C. in the Court of CJM, Churu with the allegation that the accused gave five different cheques for a total amount of Rs. 1,18,00,000/- to the department way-back in the year 2001. The cheques upon being presented in the bank account of the department were dishonoured for the reason that the accused had closed the bank account.

3. Upon appearance of the accused before the trial court, proceedings were carried further and on 16.2.2002, the learned trial court proceeded to orally read out the charge for offence under Section 138 of the N.I. Act only to the accused in the three cases which are being considered in this bunch of revisions. The order dated 16.2.2002 reads as under:

4. Thereafter, proceedings were continued and the trial court passed separate judgments dated 28.6.2005 whereby, the accused Bhanwar Lal and Bhagirath were acquitted whereas, the accused Govind Ram was convicted for the offence under Section 138 of the N.I. Act and was sentenced to imprisonment as well as fine equal to the cheque amount. Govind Ram preferred three separate appeals against his conviction before the Sessions Judge, Churu, who decided the same by separate judgments dated 6.9.2016 and while accepting the appeals, remanded the matters to the trial court for holding denovo trial and to decide the cases afresh after complying with the mandatory requirements of Sections 244 and 245 Cr. P.C. Hence, these revisions.

5. I have heard and appreciated the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

6. Ex-facie, this Court is of the view that the appellate court's judgments are grossly illegal and cannot be sustained. True it is that complaints were submitted by the Excise Department in the CJM Court, Churu for the offences under Sections 138 of N.I. Act and 420 I.P.C. and cognizance was also taken for these offences but at the stage of consideration of charges, the learned Magistrate directed reading out of accusation for the offence under Section 138 of the N.I. Act only to the accused. No charge was framed against the accused for the offence under Section 420 I.P.C. and thus, apparently, compliance of Section 244 of Cr. P.C. was not required. Section 245(2) Cr. P.C. empowers the Magistrate to discharge the accused at any previous stage (even without recording evidence) in case the charge is groundless. As the complaints were filed with the simple allegation of dishonour of cheques, apparently, the charge under Section 420 I.P.C. was exfacie not made out from the admitted prosecution allegations. Since Section 245(2) Cr. P.C. empowers the Magistrate to discharge the accused without recording evidence, the order dated 16.2.2002, referred to supra, has to be construed as one of simultaneous discharge of the accused from the offence under Section 420 I.P.C. and reading out of the accusation under Section 138 of the N.I. Act. The accused did not raise any objection against this order at any stage before the trial court. Manifestly, the trial court did not frame charge against the accused for the offence under Section 420 I.P.C. and hence, the trial was not conducted as a warrant case instituted otherwise than on a Police report but rather the procedure of summary trial was adopted by the trial court.

7. I am of the firm opinion that no prejudice was caused to the accused in the case at hand by the alleged non-compliance of the procedure prescribed under Section 244 Cr. P.C. and hence, the appellate court erred while interfering in the trial court's judgments and setting aside the same and remanding the cases to the trial court for denovo trial.

8. Though on the face of it, the order passed by the appellate court remanding the matter to the trial court for fresh trial after complying with the requirements of Sections 244 and 245 Cr. P.C. appears to be attractive but this Court cannot lose sight of the fact that the Govt. Excise Department, which was deprived of a huge sum of money nearing about Rs. 1,18,00,000/- (for which 5 separate complaints were filed) by the accused respondent, has sustained a prolonged litigation against the private respondent for almost 16 years. If at all, the trial court had convicted the respondent for the offence under Section 420 I.P.C. without adhering to the mandatory provisions of Sections 244 and 245 Cr. P.C., then without any doubt, the respondent could have cried foul about the proceedings claiming prejudice. However, since the trial court neither framed charges nor convicted the respondent for the offence under Section 420 I.P.C., apparently, no prejudice was caused to him. As stated above, oral charge was framed and read out to the accused way-back in the year 2002. The accused did not raise any protest against the said order and allowed it to become final. Thereafter, the trial kept on dragging for almost 4 years. During the course of the entire proceedings before the trial court, the accused never raised this objection, which came to be portrayed for the first time in appeal. In view of these facts, this Court feels that the failure of the trial court to adhere to the procedure prescribed under Sections 244/245 Cr. P.C. before deciding question of charges amounted to a purely curable defect which stood purged and cured by the subsequent development viz. dropping of the charge under Section 420 I.P.C. Thus, I am of the firm opinion that the appellate court was totally unjustified in setting aside the impugned judgment dated 6.9.2016 passed by the trial court and remanding the matters for denovo trial. If denovo trial is held after this immense delay, the accused would virtually get a default exoneration in the matters even though he is guilty of the dishonour of cheques for a huge sum in excess of one crore rupees the amount whereof is due to the State exchequer because most of the departmental witnesses might have retired in the intervening period or might not be otherwise available for giving evidence.

9. The revisions thus succeed and are hereby allowed. The impugned judgments dated 6.9.2016 passed by the appellate court in all the three cases are set aside. The matters are remanded to the appellate court who shall restore the appeals to the original numbers and decide the matters afresh on merits after providing opportunity of hearing to the parties. The matters upon remand shall be decided within three months from the date of receipt of copy of this order. The accused shall appear before the Sessions Court concerned on or before 30.11.2017.

10. Record be returned to the court concerned forthwith.

11. A copy of this order be placed in each file.