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2012 DIGILAW 566 (GAU)

Henry Abraham v. Mriganka Bharali

2012-05-07

UJJAL BHUYAN

body2012
JUDGMENT Hon'ble MR. Justice Ujjal Bhuyan. 1. This revision petition is directed against the order dated 16-08-2011 passed by the learned Judicial Magistrate 1st Class, Kamrup at Guwahati in C.R. Case No. 7746/2007 whereby the defence evidence was closed and the case was fixed for arguments. The brief facts of the case may be noted. 2. The respondent as the complainant filed a complaint case against the petitioner u/s 138 of the Negotiable Instruments Act, 1881 ("the Act" hereafter) in the Court of the learned Chief Judicial Magistrate, Kamrup at Guwahati. The said complaint was filed alleging dishonour of cheques issued by the petitioners for the discharge of their liability. It was registered as C.R. Case No. 7746/2007 and proceeded before the learned Judicial Magistrate 1st Class, Kamrup at Guwahati. The petitioners are the accused in the said case. To prove the charge u/s 138 of the Act, the complainant examined three witnesses and they were also cross examined by the defence. The statements of the accused were accorded u/s 313 of the Code of Criminal Procedure (Cr.P.C.). Thereafter, though a number of chances were given to the accused to adduce defence evidence, they failed to do so. This led the learned Magistrate to pass an order on 30-12-2010 closing the defence evidence. 3. The said order was challenged by the petitioners in revision in the Court of the learned Sessions Judge, Kamrup at Guwahati. The learned revisional Court by order dated 31-05-2011 passed in Criminal Revision No. 3/2011 granted one more chance to the accused to adduce defence evidence subject to payment of cost of rupees one thousand to the complainant. 4. Thereafter, the petitioner No. 1 examined himself as defence witness. He was cross examined and discharged. Prayer of the accused to issue summons to the Branch Manager of ICICI Bank, Bhangagarh Branch as defence witness was allowed. On the next day, the petitioner No. 2 was absent with steps. The Branch Manager of ICICI Bank was absent though served. On the next day (30-06-2011), the Bank official was present but sought for ten working days to furnish statement of account, which was granted. However, the petitioner No. 2 continued to remain absent. 5. Ultimately on 16-08-2011 Shri Gaurav Sharma of the ICICI Bank, Bhangagarh Branch deposed as defence witness No. 2. He was examined, cross-examined and discharged. On the next day (30-06-2011), the Bank official was present but sought for ten working days to furnish statement of account, which was granted. However, the petitioner No. 2 continued to remain absent. 5. Ultimately on 16-08-2011 Shri Gaurav Sharma of the ICICI Bank, Bhangagarh Branch deposed as defence witness No. 2. He was examined, cross-examined and discharged. One petition was filed by the defence side u/s 311 Cr.P.C. stating that the accused wanted to examine ICICI Prudential as defence witness. The said prayer was rejected by order dated 16-08-2011. The defence evidence was closed and the case was fixed for arguments on 14-09-2011. 6. Aggrieved, the accused have filed the present petition. 7. Heard Mr. P.Kataky, learned Counsel for the petitioners as well as Mr. A.M.Borah, learned Counsel for the respondent. 8. Learned Counsel for the petitioners submits that for medical reasons the petitioner No. 2 could not appear before the learned Magistrate on the date fixed. Referring to the statements made in the revision petition, the learned Counsel submits that the petitioner No. 2 had met with a road accident and on the date fixed (16-08-2011), she was bed ridden because of the injuries sustained by her in the road accident. He further submits that examination of ICICI Prudential authorities is essential to arrive at a just decision in the case. He therefore submits that the learned Magistrate was not justified in closing the defence evidence and fixing the matter for arguments. 9. Resisting the submissions made on behalf of the petitioners, Mr. Borah, learned Counsel for the respondent submits that there is no merit in the revision petition and that the same should be dismissed. Referring to the petition filed by the accused u/s 311 Cr.P.C. to permit the accused to summon and examine ICICI Prudential as defence witness, learned Counsel for the respondent submits that the same is totally vague and was rightly rejected by the learned Magistrate. He has also referred to proviso (a) to Sub-section (1) of Section 315 Cr.P.C. to argue that an accused can be a competent witness and give evidence provided he makes a request in writing which the petitioner No. 2 did not do. 10. The arguments advanced by the learned Counsels for the parties have been duly considered. 11. He has also referred to proviso (a) to Sub-section (1) of Section 315 Cr.P.C. to argue that an accused can be a competent witness and give evidence provided he makes a request in writing which the petitioner No. 2 did not do. 10. The arguments advanced by the learned Counsels for the parties have been duly considered. 11. As far back as on 30-12-2010 the learned Magistrate had closed the defence evidence on the ground that though more than five chances were given to the accused to adduce evidence, no such evidence was adduced. As has already been noticed in the earlier part of this judgment, the petitioners had filed revision petition before the learned Sessions Judge. In his order dated 31-05-2011, this is what the learned Sessions Judge had observed:- On perusal of the case record it appears that this is a long pending case and after closure of the evidence of the complainant side altogether 4 chances have been given, but in each and every time the accused persons have prayed time by filing petition on various grounds. It appears to me that the learned Court below has rightly rejected the prayer of the accused persons and closed the defence evidence. From the conduct of the accused persons it appears to me that the accused persons have unnecessarily dragged the case for the reason best known to them 12. However, for the ends of justice, the learned revisional Court below granted one more chance to the accused to adduce evidence. Further direction was issued to hear the arguments of both sides within one month. 13. It is seen that the petitioner No. 1 and the ICICI Bank official adduced evidence as D.W.1 and D.W.2 respectively. The petitioners knew that they had only one chance to adduce evidence but despite that the petitioner No. 2 did not come forward to give evidence on 18-06-2011 when the petitioner No. 1 adduced evidence as D.W.1. Even thereafter on two dates, 23-06-2011 and 30-06-2011, she failed to give her evidence. The road accident took place only thereafter on 02-08-2011. The petition filed by the petitioners u/s 311 Cr.P.C. to allow them to summon ICICI Prudential Authorities and to examine them as defence witness was absolutely vague and devoid of particulars. Which ICICI Prudential authority was required to be summoned was not mentioned. The road accident took place only thereafter on 02-08-2011. The petition filed by the petitioners u/s 311 Cr.P.C. to allow them to summon ICICI Prudential Authorities and to examine them as defence witness was absolutely vague and devoid of particulars. Which ICICI Prudential authority was required to be summoned was not mentioned. The details of the insurance policy was also not mentioned and when the petitioners came to know about the receipt of the insured money by the complainant was also not stated. All that was stated was that "the relevant fact came to knowledge of the accused person recently". Such a vague petition could not have been accepted and was rightly rejected. 14. The related complaint case is pending since the year 2007. Numerous opportunities were granted by the learned Magistrate to the accused for adducing evidence. The petitioners were aware from the order of the learned Sessions Judge dated 31-05-2011 that they had one last chance to adduce evidence. Thereafter, they had adduced the evidence of the petitioner No. 1 and the official of ICICI Bank as defence witness. The petitioner No. 2 was quite negligent and callous in her attitude and failed to avail the numerous opportunities granted to her to adduce evidence. Therefore, the question of allowing her further opportunities to adduce evidence does not arise. Regarding the petition filed u/s 311 Cr.P.C., the same being devoid of any particulars, and having been filed very belatedly, could not have been entertained and was rightly rejected. According to section 143(3) of the Act, trial u/s 138 should be conducted expeditiously and endeavour should be made to conclude the trial within six months. Under such circumstances, the learned Magistrate could not have granted any further time to the defence to adduce evidence. 15. In view of the discussions made above, this Court finds no infirmity in the order dated 16-08-2011.There is no merit in the revision petition and the same is accordingly dismissed. Parties to appear before the learned Judicial Magistrate 1st Class, Kamrup at Guwahati in C.R. Case No. 7746/2007 on 28-05-2012, on which date the learned Magistrate shall fix the date for arguments. Stay order passed on 09-09-2011 stands vacated. 16. Registry to send down the LCR forthwith. No cost.