Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 404 (ORI)

Siba Prasad Das v. State of Odisha

2017-04-13

B.K.NAYAK

body2017
JUDGMENT B.K.NAYAK, J. - The petitioner is the accused in ICC No.1275 of 2012 of the Court of the J.M.F.C., Bhubaneswar. He has filed CRLREV No.484 of 2015 challenging the order dated 11.03.2015 and CRLMC No.4959 of 2015 challenging the order dated 07.10.2015 passed by the J.M.F.C., Bhubaneswar in the aforesaid complaint case. 2. The Opposite Party-complainant has filed the aforesaid ICC No.1275 of 2012 under Section 138, Negotiable Instruments Act alleging that the complainant and his partners were the owners of Om Shree Opera and under an agreement dated 01.03.2012 sold the Opera to the accused-petitioner who had paid part consideration of Rs.40,00,000/- (Rupees forty lakh) by a cheque drawn on Syndicate Bank, IRC village, Bhubaneswar on 12.03l.2012.The said cheque having been bounced on presentation, the complainant has filed the aforesaid complaint case. During the course of trial the petitioner filed an application in the complaint case with prayer to direct the complainant to file the sale agreement dated 01.03.2012. The said petition was rejected by the leaned J.M.F.C. by his order dated 31.10.2014 holding that there was no material on record to the effect that a document was executed between the parties on 01.03.2012. Challenging the said order the petitioner filed CRLREV No.1123 of 2014 before this Court, which was disposed of on 23.12.2014 holding that there is mention in the complaint petition about the agreement dated 01.03.2012 as per the list of documents and therefore, the petitioner should file an appropriate application before the J.M.F.C., Bhubaneswar with a prayer to direct the complainant to produce the agreement dated 01.03.2012 before the Court and in case such application was filed the J.M.F.C. should pass appropriate order on the application on merits. Thereafter, the petitioner-accused filed an application before the J.M.F.C. on 08.01.2015 to direct the complainant to produce the document, i.e., the sale agreement dated 01.03.2012.The complainant objected to the said petition stating that the complainant has relied on the Xerox copy of the sale agreement dated 01.03.2012 since the original agreement has been retained by the accused from the date of the said agreement. After hearing, the learned J.M.F.C., by his order dated 11.03.2015 disposed of the said petition stating that since both the parties are relying upon the sale agreement dated 01.03.2012 and that Xerox copy of the said agreement has been filed by the complainant, the accused may refer the said document. After hearing, the learned J.M.F.C., by his order dated 11.03.2015 disposed of the said petition stating that since both the parties are relying upon the sale agreement dated 01.03.2012 and that Xerox copy of the said agreement has been filed by the complainant, the accused may refer the said document. This order has been challenged in the present CRLREV No484 of 2015, which was filed before this Court on 16.07.2015 with a delay of twenty-nine days, but without filing any petition for condonation of delay. 3. While the aforesaid Criminal Revision was pending before this Court and had not been taken up for hearing for non-filing of petition for condonation of delay, the trial of the complaint case proceeded before the learned J.M.F.C., and the petitioner was granted adjournments for leading defence evidence. On 22.07.2015, when the case was listed for adducing defence evidence, the petitioner again filed an application for adjournment on the ground of pendency of CRLREV No.484 of 2015 before this Court. The learned Magistrate rejected the adjournment petition fixing the complaint case to 12.08.2015 for argument. Thereafter the case suffered three adjournments and on 07.10.2015 when the case was fixed for argument, the petitioner filed a petition for recalling the order dated 22.07.2015 which was rejected by the learned J.M.F.C. on the ground that he has no power to recall the previous order. This rejection order has been challenged in CRLMC No.4959 of 2015, wherein by order dated 19.11.2015 notice was issued to the Opposite Party-complainant and further proceeding of the complaint case has been stayed. Subsequently the petitioner filed Misc. Case No.1271 of 2016 under Section 5 of the Limitation Act for condoning the delay in filing the CRLREV No.484 of 2015 and the said application has been allowed by order dated 07.04.2017, on which dated the CRLMC as well as the Criminal Revision were heard on merit analogously. 4. It was contended by the learned Counsel for the accused-petitioner that this Court having found in CRLREV No.1123 of 2014 that the complainant has mentioned about the sale agreement dated 01.03.2012 in the complaint petition and in view of the direction of this Court, the petitioner’s fresh application before J.M.F.C. to direct the complainant to produce the original sale agreement should have been allowed. It is his further submission that since the rejection of the said petition by the J.M.F.C. was challenged by the petitioner in the CRLREV No.484 of 2015 the petitioner sought for adjournment of the complaint case without leading defence evidence, which should have been allowed by the learned J.M.F.C. It is stated that the petitioner has been highly prejudiced since the learned J.M.F.C. fixed the case for argument without giving further opportunity to the petitioner to lead defence evidence. 5. The learned Counsel appearing for the Opposite Party-complainant submitted that the petitioner filed CRLREV No.484 of 2015 on 16.07.2015 beyond the period of limitation, without filing any petition for condonation of delay for a long time and since there was no order of stay of the complainant case and the accused wanted to delay the trial of the complaint case, learned J.M.F.C. was justified in closing the evidence and fixing the complaint case for argument. Thereafter, learned Counsel for the accused did not participate in the argument, for which the J.M.F.C. heard only from the side of the complainant and fixed the case to 19.11.2015 for judgment, on which date, in absence of the petitioner the learned J.M.F.C. kept the judgment in sealed cover and directed for issuance of N.B.W. against the petitioner and fixed the case to 06.01.2016. On 21.11.2015 the defence Counsel produced the stay order passed by this Court in the CRLMC which has been taken note of by the learned J.M.F.C. and thereafter no judgment has been passed. Learned Counsel for the Opposite Party further submitted that though in the complaint reference has been made about the sale agreement dated 01.03.2012, nowhere it is said that the complainant is in possession of the original agreement. On the contrary, the accused retained the original agreement and the complainant was given a Xerox copy, which he filed along with the complaint petition. Therefore, the learned J.M.F.C. has not committed any wrong in not directing the complainant to produce the original sale agreement. It is also urged that if the accused does not admit of the sale transaction and execution of the sale agreement and has any specific defence of his own, it was incumbent upon him to prove his defence. 6. Therefore, the learned J.M.F.C. has not committed any wrong in not directing the complainant to produce the original sale agreement. It is also urged that if the accused does not admit of the sale transaction and execution of the sale agreement and has any specific defence of his own, it was incumbent upon him to prove his defence. 6. It is a fact that in the complaint petition the complainant has mentioned about the sale agreement dated 01.03.2012 relating to sale of the Opera to the accused and giving of a cheque of Rs.40,00,000/- (rupees forty lakh) by the accused to the petitioner towards part consideration for the sale, which ultimately bounced. Xerox copy of the sale agreement filed along with the complaint petition is also available in the LCR, which apparently has not been proved. In his further cross-examination on recall on 26.08.2014 the complainant has stated that the said agreement is in possession of Siba Prasad Das (accused). Production and proof of the sale agreement by the complainant would be relevant only when the accused totally disputes such a sale transaction. Whether the transaction is disputed or admitted would be borne out from the prosecution as well as the defence evidence. In case the transaction is totally denied, the question of production and proof of the original sale agreement would be relevant and the Trial Court would consider the custody of the original document and effect of non-production thereof. Since the complainant has stated in his objection as well as in his evidence in cross-examination that the original document is in the possession of the accused, he could not be compelled to produce the original. Therefore, this Court finds no fault with the Magistrate in not directing the complainant to produce the original sale agreement. 7. Having filed the criminal revision before this Court and awaiting decision thereon, the petitioner sought for adjournments in the complaint case without leading any defence evidence and without participating in argument, as a result of which N.B.W. has been issued against him. This Court feels that the accused-petitioner should be given a chance to lead his defence evidence and advance argument. This Court feels that the accused-petitioner should be given a chance to lead his defence evidence and advance argument. Therefore to secure the ends of justice, it is directed that the petitioner shall surrender before the learned J.M.F.C., Bhubaneswar in the complaint case within three weeks from today and move for bail, in which event the learned J.M.F.C. shall release him on bail with suitable conditions and shall give him an opportunity to lead defence evidence by producing his own witnesses. And, thereafter, fresh argument shall be heard from both the parties and the case shall be disposed of finally within a period of four months from today. Neither party shall be allowed any adjournment by the Trial Court. With the aforesaid observations and directions, the CRLREV as well as the CRLMC are disposed of. CRLMC disposed of.