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2014 DIGILAW 922 (GAU)

Rajen Sarma v. State of Assam

2014-10-15

PRASANTA KUMAR SAIKIA

body2014
Judgment Prasanta Kumar Saikia, J. 1. This criminal petition u/s. 482 CrPC is against the judgment dated 12.12.2012 rendered by learned Sessions Judge, Kamrup, Guwahati in Criminal Revision No. 57 of 2011 whereby and whereunder the learned Sessions Judge was pleased to quash and set aside the order dated 21.5.2011 passed by learned Chief Judicial Magistrate, Kamrup, Guwahati in C.R. Case No. 3827c of 2014 u/s. 138 of the N.I. Act, 1938 rejecting an application filed by the accused therein seeking to adduce evidence after closure of defence evidence. I have heard Mr. P.K. Munir, learned counsel for the petitioner and Mr. K. Munir, learned Addl. Public Prosecutor appearing for the State/respondent. 2. It may be stated that in pursuance to the order passed by this Court, notice was served on the private respondent, Dipankar Brahma, accused in Criminal Revision. However, as per Registry's note, he refused to accept notice and as such, the proceeding ran ex-parte against him. 3. With consent of the parties, I propose to dispose of this matter at the admission stage itself. 4. The brief facts necessary for disposal of the present proceeding is that Sri Rajen Sarma, complainant in C.R. Case No. 3827c of 2014, filed a petition under Section 138 of the N.I. Act alleging that in liquidation of the loan of Rs. 1,66,000/-, the accused issued some cheques in favour of the complainant in the aforementioned proceeding. When the cheque was tendered to his banker, all the cheques were dishonoured due to insufficiency of fund in the name of drawer. 5. Thereafter, in accordance with the provisions prescribed, the complaint issued demand notice on the drawer of the cheque. However, on receipt of the notice, the drawer did not satisfy the demand for which the complainant had filed a complaint before the Court of Chief Judicial Magistrate within the time, fixed by law, seeking prosecution of the accused in accordance with law. 6. In due course, notice of the case was served on the accused therein, namely, Dipankar Brahma. The accused entered appearance and contested the proceeding. Thereafter, the complainant adduced evidence of 4 (four) witnesses. The accused also adduced evidence of two witnesses. However, on 20.11.2010, the court below was pleased to close the defence evidence. 7. 6. In due course, notice of the case was served on the accused therein, namely, Dipankar Brahma. The accused entered appearance and contested the proceeding. Thereafter, the complainant adduced evidence of 4 (four) witnesses. The accused also adduced evidence of two witnesses. However, on 20.11.2010, the court below was pleased to close the defence evidence. 7. On 18.12.2010, the accused Dipankar Brahma preferred an application praying for allowing him to examine him as witness which was objected to by the complainant. 8. On hearing the learned counsel for the parties, the court below was pleased to reject the application dated 18.12.2010 by its order dated 21.05.2011. Being aggrieved, the accused therein preferred a revision before the Sessions Judge, Kamrup, Guwahati. The said revision was registered as Criminal Revision No. 57 of 2011. The notice of the proceeding was served on the respondent therein (who is petitioner herein and the complainant in C.R. Case No. 3827c of 2014). 9. On entering appearance the respondent had filed objection. One of the grounds of the objection was that the revision was time barred and as such, the court ought to have rejected such revision at the very outset. On hearing the learned counsel for the parties, the court below was pleased to set aside the order dated 21.5.2011 passed by the learned CJM in C.R. Case No. 3827c of 2014 by its order dated 12.12.2012 in Crl. Revision No. 57 of 2011. 10. Being aggrieved, the complainant has preferred this application u/s. 482 CrPC questioning the order passed by Sessions Judge in Criminal Revision Petition No. 57 of 2011 on 12.12.2012. As stated above, one of the grounds, now, taken in the present petition is that the revision is non-est in law since the learned Sessions Judge, inspite of the fact that such revision was filed beyond the period of limitation, chose to take cognizance of the proceeding, and rendered the order in question quashing the order dated 21.05.2011 passed in C.R. Case No. 3827c of 2014 vide judgment dated 12.12.2012. 11. Since the order dated 12.12.2012 was passed in gross violation of the provisions, laid down in Section 3 of the Limitation Act, the same is unsustainable in law and therefore, this Court, needs to set aside and quash the aforesaid judgment in exercise of power, conferred on it under Section 482 of the CrPC. In that connection, I have heard Mr. In that connection, I have heard Mr. K. Munir, learned Addl. PP who supports the argument advanced by the learned counsel for the petitioner. 12. Before we proceed further, let us have a look at Section 3 of the Limitation Act. For ready reference the same is reproduced below:- "Bar of Limitation - (1) Subject to the provisions contained in section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (a) A suit is instituted,-- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made, and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court, (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court. 13. In support of his contention that beyond the period of limitation, fixed by law, a court cannot take cognizance of a suit, application, appeal, revision etc, learned counsel for the petitioner has drawn my attention to the decision rendered by Hon'ble Apex Court of the country in the case of Ragho Singh v. Mohan Singh & Ors. reported in 2001 (9) SCC 717 . The relevant part is reproduced below:-- "6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs." 14. On perusal of Section 3 of the Limitation Act in the light of decision rendered in Ragho Singh (supra), I have found that if a suit is instituted or appeal or application is preferred after the period of limitation, prescribed by Law of Limitation, same shall be dismissed even if plea of limitation is not raised by the opposite party as a defence. Coming back to our case, I have found the order which was set aside by the learned Sessions Judge in Criminal Revision No. 57 of 2011 was rendered on 21.05.2011. The accused therein preferred an application seeking certified copy thereof on 23.6.2011 and copy was made available on 6.7.2011. I have found that the revision filed on 6.9.2011. 15. In terms of Article 131 of the Schedule to the Limitation Act, 1963, the period of limitation for preferring revision before the Sessions Court is 90 days. However, in the present case it is quite apparent that the revision aforesaid was not filed within the period prescribed by Law of Limitation, i.e., 90 days. There was delay of 4(four) days in preferring the revision. 16. Unfortunately no prayer seeking condonation of delay in terms of Section 5 of the Limitation Act was made by respondent No. 2 herein. Situation being such, in terms of Section 3 of the Limitation Act, Sessions Judge was duty bound to dismiss the revision proceeding aforementioned inasmuch as it lacks necessary jurisdiction to take cognizance of such proceeding. 17. 16. Unfortunately no prayer seeking condonation of delay in terms of Section 5 of the Limitation Act was made by respondent No. 2 herein. Situation being such, in terms of Section 3 of the Limitation Act, Sessions Judge was duty bound to dismiss the revision proceeding aforementioned inasmuch as it lacks necessary jurisdiction to take cognizance of such proceeding. 17. In view of above, I am of the opinion that order dated 12.12.2012 rendered in Criminal Revision No. 57 of 2011 is unsustainable in law and same is liable to be quashed and set aside. Accordingly the order under challenge is quashed and set aside. 18. The court of learned Chief Judicial Magistrate, Kamrup, Guwahati is now directed to proceed with the case in accordance with law. 19. The complainant is directed to appear before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati in connection with the case aforementioned on 10.11.2014 without fail to receive further order(s). A copy of this order be sent to the court below immediately.