District Excise Officer, Nagaur vs Om Prakash And Ors

Instant criminal leave to appeal has been filed by the appellant against the order dated 16.06.2017 passed by the learned Civil Judge cum Judicial Magistrate, Nagaur in Criminal Original Case No.(603/2011) 1174/2012 whereby the complaint as filed by the appellant was rejected and the respondents were acquitted for the offence under Section 138 of NI Act.

Brief facts of the case are that the appellant District Excise Officer filed a complaint against the accused-respondents before the Civil Judge cum Judicial Magistrate for offence under Section 138 of NI Act. The said complaint was rejected by the trial court and the accused-respondents were acquitted merely on the ground that no evidence was produced by the appellant-complainant.

Learned counsel for the appellant argued that the appellant being a District Excise Officer, could not appear before the trial court for his evidence for one or the other reason and the evidence of the appellant is very much essential for proper adjudication of the case but the learned trial court closed the evidence of the appellant and his witnesses and acquitted the accused-respondents in this case. Counsel submits that one last opportunity may be granted to the appellant to produce his all evidence including the witnesses.

Counsel for the respondents opposed the prayer and submits that despite granting several opportunities, the appellant failed to appear before the trial court for his evidence. In such circumstances, he may not be permitted for recording his evidence and the trial court has rightly rejected the complaint and acquitted the accused-respondents.

I have heard rival contention of the parties and also examined the impugned order.

It is not in dispute that despite grant of opportunities, the appellant failed to produce his evidence, however, since the complaint was filed against the respondents for offence under Section 138 of NI Act, the evidence of the appellant-complainant, who is a District Excise Officer, is very much essential, therefore, in these circumstances and taking into consideration the entire facts and circumstances, in the interest of justice, it will be just and appropriate to grant one opportunity to the appellant to produce his evidence including his witnesses.

Hence, the impugned order dated 16.06.2017 passed by the trial court is set aside and the matter is remanded back. It is ordered that last opportunity is granted to the appellant to produce his evidence including the witnesses, if any, before the trial court on 16.09.2019. The appellant shall deposit a sum of Rs.5,000/- as cost before the trial court. On deposition the cost, the trial court shall record the evidence of the appellant including his witnesses, if any, on that day. The trial court shall not grant any further opportunity to the appellant to produce the evidence.

Hence, the criminal leave to appeal is disposed of.

Record of the trial court be sent back immediately.