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2005 DIGILAW 510 (ORI)

Niharendu Bhuyan v. State of Orissa

2005-09-01

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. — This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. to set aside the order dated 12.5.2005 passed by the J.M.F.C., Salipur in 1.C.C. Case No.108 of 2003 and to direct him to allow the petitioners to further cross-examine P.W.1, record their statements under Section 313 of Cr.P.C. and to recall the N.B.W. of arrest issued against them. 2. The petitioners faced trial for the offence under Section 138 of Negotiable Instruments Act in I.C.C. Case No.108 of 2003 before the J.M.F.C., Salipur on the complaint made by Subodh Kumar Bhuyan (opp. party No.2). The complainant was examined in chief on 23.8.2004 as P.W.1 and on the prayer of the accused persons (petitioners), his cross-examination was deferred to 23.2.2005, on which date the advocate for the complainant filed a petition under Section 311 of Cr.P.C. with a prayer to re-examine P.W.1. The prayer being allowed he was re-examined and was cross-examined in part on behalf of the accused persons. Further cross-examination was deferred to 28.2.2005 on the prayer made on behalf of the accused persons. On that date learned defence counsel filed a petition praying for one month time to pay back the cheque-amount of Rs.1,25,212/- to the complainant. The peti¬tion was allowed and the case was adjourned to 2.4.2005, on which date again on the prayer of learned counsel for the accused-petitioners the case was adjourned to 11.4.2005 subject to pay¬ment of cost of Rs.400/-. On 11.4.2005 again a petition was filed on behalf of the accused persons for time to enable them to pay the aforesaid amount to the complainant. The petition was allowed subject to payment of cost of Rs.5,000/-. On the same day after passing of the aforesaid order, accused persons paid Rs.25,000/- to the complainant and the case was adjourned to 10.5.2005 for payment of the balance amount. On this date the defence counsel submitted that the accused persons had given him Rs.25,000/- to pay to the complainant and he had no further instruction and prayed for adjournment of the case. On this date the defence counsel submitted that the accused persons had given him Rs.25,000/- to pay to the complainant and he had no further instruction and prayed for adjournment of the case. He further prayed to recall the order dated 11.4.2005 wherein the accused persons were asked to pay cost of Rs.5,000/-, but the prayer was rejected and the trial Court directed the accused persons to appear personally on 12.5.2005 positively for recording their statement under Section 413 of Cr.P.C. It also directed that the learned defence counsel would come prepared on that date to complete the cross-examination of P.W.1. On 12.5.2005, four petitions were filed on behalf of the accused persons. One of the petitions was to ad¬journ further cross-examination of P.W.1. The petition was re¬jected on the ground that despite sufficient opportunity given to the accused persons to cross-examine P.W.1 they did not avail the same. The second petition was to grant one month time to pay the cost of Rs.5,000/-. The third petition was to recall the order dated 11.4.2005 wherein the accused persons were directed to pay Rs.5,000/- towards cost. Both these two petitions were rejected. The last petition was to allow 15 days time to the accused per¬sons for their personal appearance before the Court on the ground of their illness. Photocopies of some documents showing illness of the accused persons were filed. Since the documents did not bear seal and signature of the doctor and in absence of the original ones, the prayer was rejected and order was passed to issue N.B.W. of arrest against the accused persons fixing the case to 31.5.2005 for their production. Being aggrieved with these orders the accused persons have filed this petition under Section 482 of Cr.P.C. as stated earli¬er. 3. Learned counsel for the petitioners submitted that after being examined in chief on the previous date the complain¬ant was re-examined by the prosecution on 23.2.2005. He was cross-examined in part and on the prayer of the defence counsel, his examination was deferred to 28.2.2005, on which date, on the basis of compromise between the parties outside the Court, the accused prayed for one month time to pay back the dues to the complainant and the case was adjourned to 2.4.2005 for payment of the same. On that date learned counsel of both parties submitted that the compromise was going on between the parties. On that date learned counsel of both parties submitted that the compromise was going on between the parties. A petition was filed on behalf of the accused per¬sons to adjourn the case to some other date for payment of the dues to the complainant. The prayer was allowed subject to pay¬ment of cost of Rs.400/- and the case was adjourned to 11.4.2005. On that date a sum of Rs.25,000/- was paid by the accused persons to the complainant and a petition was filed to adjourn the case to some other date for payment of the balance amount. Due to financial stringency, the accused could not pay the balance amount, but tendered Rs.25,000/- to the complainant which was not accepted. So in fact the case was adjourned to different dates to enable the accused to make the payment of dues of the complainant and not for further cross-examination of P.W.1. So the trial Court ought not have rejected the adjournment petition for fur¬ther cross-examination of P.W.1. He further submitted that before the cross-examination of P.W.1 was over the Magistrate directed that the statement of the accused would be recorded when the complainant had not closed his case. The order of the Magistrate directing the accused persons to remain present in Court on 12.5.2005 for recording their statements under Section 313 of Cr.P.C. is illegal. Furthermore, when a time petition was filed on 12.5.2005 to adjourn the case to some other date for personal appearance of the accused persons in Court with medical certifi¬cates, the trial Court ought not have rejected the petition and issued N.B.W. of arrest against them. He further submitted that when compromise was going on between the parties and adjournment was sought for from both sides, the trial Court ought not have imposed cost of Rs.5,000/- against the accused persons for ad¬journing the case. 4. Learned counsel appearing for opposite party No.2 submitted that in fact the petitioners had no mind to compromise the case. Somehow or other they wanted to linger the proceeding. On the pretext that they would pay the cheque amount to the complainant they took several adjournments but did not pay the same. 4. Learned counsel appearing for opposite party No.2 submitted that in fact the petitioners had no mind to compromise the case. Somehow or other they wanted to linger the proceeding. On the pretext that they would pay the cheque amount to the complainant they took several adjournments but did not pay the same. So the trial Court rightly granted last chance for comple¬tion of cross-examination of P.W.1 and for appearance of the accused persons before the Court for recording their statement under Section 313 Cr.P.C. When the Court felt that the accused persons were lingering the case on the pretext of making payment of the dues to the complainant, to avoid further delay it imposed cost of Rs.5000/- against them and adjourned the case to 12.5.2005. So the imposition of cost cannot be said to be illegal or exorbitant. The trial Court rightly rejected the subsequent prayer for setting aside the order of imposing of the said cost. He further submitted that the accused was specifically directed to appear on the last date for recording their statement under Section 313 of Cr.P.C. Instead of complying that order, they filed a petition for adjournment of the case on the ground of illness. The documents produced by them in support of their illness did not bear the signature and seal of the Officer con¬cerned. So rightly the trial Court disbelieved the plea of ill¬ness and issued N.B.W. of Arrest against the accused persons. 5. As stated above, the case was adjourned to different dates mainly for payment of the dues of the complainant (P.W.1) and not for his further cross-examination. So when the compromise failed and a petition was filed on behalf of accused-petitioners to adjourn the case for further cross-examination of P.W.1, the trial Court ought to have given at least one chance for the purpose. Similarly, before closure of the prosecution case the trial Court ought not have fixed a date for recording the state¬ment of the accused persons-petitioners and insisted for their personal appearance before the Court. The Court below ought to have dispensed with the personal appearance of the accused-peti¬tioners instead of issuing N.B.W. of arrest against them, when a petition was filed to that effect even, if the document relating to their illness were found not to be genuine, particularly when the case had not reached the stage of recording accused state¬ment. The Court below ought to have dispensed with the personal appearance of the accused-peti¬tioners instead of issuing N.B.W. of arrest against them, when a petition was filed to that effect even, if the document relating to their illness were found not to be genuine, particularly when the case had not reached the stage of recording accused state¬ment. As regards the prayer for setting aside the order of impos¬ing cost of Rs.5000/- dated 11.4.2005, earlier, on 10.5.2005, a petition filed on behalf of the accused-petitioners to recall the said order had been rejected by the trial Court. So, the accused-petitioners ought not to have filed a similar petition on 12.5.2005, particularly when on the same date they filed a peti¬tion for granting time to pay the said cost. Furthermore, as appears from the copy of order-sheets of the lower Court, the accused-petitioners took several adjournments on the pretext of payment of the balance cheque amount. So, the imposition of cost of Rs.5000/- on the accused-petitioners cannot be said to be illegal and unjust. The trial Court rightly rejected the said petition. Similarly, as regards the petition for grant of time for payment of cost of Rs. 5000/-, when the accused-petitioners filed a petition to recall the order imposing cost of Rs. 5000/-, they should not have filed a petition simultaneously for grant of time to pay the said cost. So, the order of rejecting the said petition cannot also be treated as illegal to warrant interference by this Court. Under such circumstances, the CRLMC is allowed in part and the impugned order imposing cost of Rs.5,000/- against the ac¬cused petitioners is confirmed and the order of issuance of N.B.W. of Arrests against the accused-petitioners and the rejec¬tion of the petition for adjournment of the case to cross- examine P.W.1 are set aside. It is directed that both the parties shall appear before the Court below on 20.9.2005. The Magistrate shall release the accused petitioners on previous bail. If the accused-petitioners pay the cost of Rs.5,000/- to the complainant-opp.party on the said date, he shall allow them to cross-examine P.W.1 on the same date and in case cross-examination cannot be taken up on that date, he shall give only once chance more to the accused-petitioners to cross-examine P.W.1 and proceed with the case in accordance with law. Accordingly the CRLMC is disposed of. CRLMC disposed of.