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2021 (11) TMI 275

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....g in the court of Ld. Metropolitan Magistrate Court No. 29 (NI Special Court), Ahmedabad. (C) Your Lordship may be pleased to expedite the trial of a Criminal Case No. 610/08, pending in the court of Ld. Metropolitan Magistrate Court No. 29 (NI Special Court), Ahmedabad." Heard Learned Advocate for the applicant as well as Learned APP for the Respondent-State. However, notice was served to the Respondent No. 2, none was present to contest this petition for an on behalf of the respondent No. 2. Brief facts of the present case are as under: That, the applicant is the original complainant where as respondent No. 2 is the original accused. The complaint filed by the applicant on 28.07.2008 being numbered as Criminal Case No. 610/08, befor....

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....ompletion on merits. That the respondent no. 2 (original accused) filed an application Exh. 38 for de novo trial before the trial court on 20.11.2012 and the learned Magistrate rejected the said application vide order dated 29.12.2012. Being aggrieved by the said order, respondent no. 2 has filed Criminal Revision Application No. 05/2013 wherein, the Additional City Sessions Judge, Court No. 18, Ahmedabad was pleased to allow the said revision application vide order dated 25.07.2013 directing de novo trial and commencement of proceedings of afresh hence, present petition. Learned Advocate appearing for the applicant submits in his arguments that, the impugned complaint lodged by the complainant under section 138 of the Negotiable Instrume....

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....advocate for the applicant has requested to allow present application, by quashing and setting aside the impugned order dated 25.07.2013 passed in Criminal Revision Application No. 05 of 2013 by Learned Additional City Sessions Judge, Court No. 18, Ahmedabad. Learned APP for the respondent no. 2 has requested to pass an appropriate order in the present matter. Nobody argued on behalf of respondent no. 2. Heaving heard learned advocate for the applicant as well as learned APP for the respondent-State and papers available on record, it appears that while passing the impugned order the learned Additional City Sessions court has observed in paragraph nos. 15 to 17 as under; "15. Accordingly, if the learned trial judge was of the opinion of ....

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....f Nitinkumar Saventilal, learned trial court has rejected the application. The deposition of the complainant was also brought on record which speaks that he was examined but unfortunately right to cross-examine was closed by the Court and thereafter bank witness was also examined and such witness was cross-examined by the defence side. And thereafter, at the request of the complainant, further statement of the respondent no. 2 was recorded. The case was tried by the Metropolitan Court as summons triable case as provided under the provisions of Code of Criminal Procedure. It further appears that during the entire trial no objection was raised by the accused in the trial and after completing recording evidence from prosecution, the entire tri....

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....it would not be permissible to raise such an objection insisting on fresh trial, which is precisely what has happened in the present case. The petitioner participated in the trial without any objection or murmur. Not only pre-charge evidence was recorded, the witnesses were offered for cross-examination even at the stage. The petitioner participated in the proceedings. The charge was framed. The witnesses were recalled and cross-examined at length by the defence. Only when the case was fixed for oral arguments, an objection to the procedure was taken. In our opinion, such a procedure being at best irregular and the irregularity being curable, it would be wholly unjust to permit the petitioner to take advantage of his own silence and to rais....