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2011 DIGILAW 620 (GAU)

Mukunda Ram Das v. Manab Lahkar

2011-07-26

C.R.SARMA

body2011
JUDGMENT and ORDER C.R. Sarma, J. 1. Heard Mr. M.J. Quadir, learned counsel, appearing for the petitioner. Also heard Mr. M.K. Nath, learned counsel, appearing for the respondent/Opp. Party. 2. By this application, filed under Section 401 and Section 397 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner has challenged the order, dated 4.10.2010, by which the learned Magistrate refused the petitioner's prayer for granting him an opportunity to adduce defence evidence and prove certain documents for his defence. 3. The Opp. Party as complainant, instituted a proceeding under Section 138 of the Negotiable Instrument Act, 1981 (hereinafter called the 'NI Act') against the present petitioner and the said proceeding was registered C.R. Case No. 7319c/2005 under Section 138 of the N.I. Act, in which the petitioner, as accused person appeared and contested the proceeding. At the close of the evidence for the prosecution, the learned SDJM No. 2, Guwahati, vide order, dated 21.08.2010, fixed the case, on 14.09.2010, for recording the statement of the accused person under Section313 of the Code of Criminal Procedure and defence evidence. On 14.09.2010, the statement of the accused person was recorded and on being asked, the accused/petitioner declined to adduce defence evidence. Accordingly the case was posted for argument, on 24.09.2010. By the said order the learned Magistrate asked both the parties to file written arguments on 24.09.2010. On 24.09.2010, the complainant, by filing application No. 5004 prayed for another date. Accordingly adjournment was granted and the case was fixed on 04.10.2010 for submission of written arguments. On the same day, the accused petitioner filed an application being application No. 5191, seeking an opportunity to adduce defence evidence and to prove certain documents. The learned Magistrate by the impugned order dated 04.10.2010 rejected the said prayer with the following observations and fixed the matter on 04.11.2010 for arguments of both the parties:- Perused the C.R. it appears that on the date of statement of defence while the statement of the accused person was recorded under Section313 Cr.P.C. he was asked whether he would adduce defence evidence if any or not and anything to say about the case. But at that time the accused person and his learned counsel have categorically stated that they would adduce no defence evidence for which the case was proceeded for argument. But at that time the accused person and his learned counsel have categorically stated that they would adduce no defence evidence for which the case was proceeded for argument. The allowing of the petition No. 5191 will push the matter back for another few months. Moreover, the accused person was given ample opportunity to give his evidence but he denied to adduce evidence. This Court has no jurisdiction to recall the earlier order. Hence the petition No. 5191 is rejected. 4. Being aggrieved by the said order the accused person as petitioner has preferred this revision petition. 5. Mr. M.J. Quadir, learned counsel has submitted that the petitioner, at the time of giving his statement under Section 313 Cr.P.C., due to certain mistake failed to state that he would adduce defence evidence and therefore, by filing petition No. 5191, prayed for an opportunity to adduce defence evidence. It is submitted that as the argument was not heard in the said matter, there was no difficulty in granting the opportunity as asked for. The learned counsel, appearing for the petitioner, has further submitted that the rejection of the prayer has caused much prejudice to the petitioner, inasmuch as the same deprived the petitioner from disproving the complainant's Opp. Party's allegations brought against him and thus he has been deprived from proving his innocence. 6. Supporting the impugned order aforesaid, Mr. M.K. Nath, learned counsel appearing for the Opp. Party, has submitted that as the petitioner declined to adduce evidence at the time of recording his statement under Section 313 Cr.P.C. and on being asked for, the learned Magistrate committed no error by rejecting subsequent prayer, made by the petitioner. 7. Having heard the learned counsel of both the parties and considering the facts and circumstances of the case, as revealed from the record, which is available before this Court, it is found that the accused person, though initially declined to adduce evidence, subsequently on 24.09.2010 i.e. before the argument was heard, filed an application seeking opportunity to adduce defence evidence. From the record it appears that, even after recording the statement of the accused person, on 14.09.2010, the argument was not heard on various grounds and the case stood adjourned on 24.09.2010 and 04.10.2010. From the record it appears that, even after recording the statement of the accused person, on 14.09.2010, the argument was not heard on various grounds and the case stood adjourned on 24.09.2010 and 04.10.2010. Therefore, as the argument was not heard, granting of an opportunity, as asked for, directing to complete the examination of the defence evidence within a specific period, if necessary, with cost, would not have caused any prejudice to the other side i.e. the complainant, rather the same would have given an opportunity to the accused person to disprove the allegations, brought against him. This would have certainly facilitated to find out the truth involved in the dispute between the parties. Though the learned Magistrate refused to allow the prayer on the ground of delay, it must be kept in mind that the accused also should be given sufficient opportunity to adduce defence evidence, if asked. Failure of the accused to claim, on the date of recording his statement under Section 313 Cr.P.C, that he would examine defence witness, cannot negate his right to subsequently ask an opportunity to adduce evidence, if permitted by law. There is no bar that the accused, who initially declines to adduce defence evidence, cannot subsequently exercise the said right, without causing prejudice to the other side. 8. In the present case, record does not indicate that the case was required to be adjourned for several times due to failure of the accused to adduce defence evidence, despite giving opportunities. It has been noticed that though on 14.09.2010 i.e. the date of recording his statement under Section 313 Cr.P.C, the accused declined to adduce defence evidence, immediately thereafter, on 29.09.2011, on which date also the argument could not be heard due to adjournment, sought by the complainant, the accused made the prayer for allowing him to adduce defence evidence. Therefore, as no inordinate delay, was caused by the accused. Granting of an opportunity to adduce defence evidence would have met the ends of justice. 9. Considering entire aspect of the matter and the facts and circumstances of this case, I am of the considered opinion that an opportunity should be given to the accused person to adduce defence evidence and to prove the relevant documents, if any. 10. In view of the above discussion, I find sufficient merit in this revision petition requiring interference with the impugned order. 10. In view of the above discussion, I find sufficient merit in this revision petition requiring interference with the impugned order. Accordingly, this revision petition is allowed and the impugned order, dated 04.10.2010, is set aside and quashed. The learned SDJM No. 2, Guwahati shall give an opportunity to the accused petitioner to adduce defence evidence, if any. As the matter is pending since 2005, an endeavour shall be made by the learned Magistrate to dispose of the same within a period of 3 (three) months from the date of receipt of the order. 11. Return the LCR immediately. Petition allowed