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2019 DIGILAW 504 (ORI)

Bibekananda Swain v. Nirmal Chandra Mohanty

2019-08-05

S.K.SAHOO

body2019
JUDGMENT S K Sahoo, J. - The petitioner Bibekananda Swain has filed this application under section 482 Cr.P.C. challenging the impugned order dated 25.08.2018 passed by the learned Sessions Judge, Kendrapara in Criminal Appeal No. 01 of 2014 in rejecting the petition filed by the petitioner for a direction to Dr. P.K.Choudhury to remain present in Court for his examination to prove the legality and genuineness of the medical certificates vide Exts. 12 and 13. 2. The opposite party no.1 Nirmal Chandra Mohanty filed a complaint petition in the Court of learned S.D.J.M., Kendrapara vide I.C.C Case No. 164 of 2010 against the petitioner for commission of offence under section 138 of the Negotiable Instrument Act, (hereafter "N.I. Act"). The case was transferred to the Court of learned J.M.F.C., Kendrapara for trial. The learned trial Court vide judgment and order dated 12.12.2013 found the petitioner guilty under section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for one year and to pay a compensation of Rs.6,00,000/- (six lakhs) under section 357(3) of Cr.P.C., in default of payment of compensation, to suffer simple imprisonment for two months. 3. The petitioner preferred Criminal Appeal No.01 of 2014 in the Court of learned Sessions Judge, Kendrapara against the aforesaid judgment and order of conviction passed by the learned J.M.F.C., Kendapara, which is subjudiced. 4. Learned counsel for the petitioner contended that the complaint petition should have been filed by 25.02.2010 in view of section 142(1) (b) of the N.I. Act, but it was filed only on 27.04.2010 and medical certificates issued by Dr. P.K.Choudhury were filed along with delay condonation petition for condoning the delay and showing the sufficient cause for not making the complaint within the stipulated period. Learned S.D.J.M., Kendrapara, where the case was initially pending, condoned the delay on the basis of the medical certificates. It is further contended that since Dr. P.K.Choudhury has not been examined to prove the medical certificates, therefore, it cannot be said that the medical certificates vide Exts.12 and 13 are genuine and on the basis of such certificates, the learned S.D.J.M. should not have condoned the delay in filing the complaint petition after the prescribed period. It is further contended that since examination of Dr. P.K.Choudhury has not been examined to prove the medical certificates, therefore, it cannot be said that the medical certificates vide Exts.12 and 13 are genuine and on the basis of such certificates, the learned S.D.J.M. should not have condoned the delay in filing the complaint petition after the prescribed period. It is further contended that since examination of Dr. P.K.Choudhury was essential to prove the genuineness of the medical certificates stated to have been issued by him, the petitioner filed a petition before the learned appellate Court and the learned appellate Court should not have rejected the same as in view of section 391 of Cr.P.C., it has got power to take further evidence or to direct it to be taken by the learned Magistrate. 5. On perusal of the impugned order, it appears that the learned Sessions Judge has observed that the order relating to condonation of delay and the order of taking cognizance have not been challenged by the petitioner and petition for summoning the doctor has been filed just to prolong the litigation and to harass the opposite party and accordingly, the petition filed by the petitioner was rejected. 6. The petitioner has not annexed the order of the learned S.D.J.M., Kendrapara by which the delay in filing the complaint petition was condoned. 7. Proviso to section 142(1) (b) of the N.I. Act states that cognizance of a complaint may be taken by a Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. In view of section 142(1) (b) of the N.I.Act, the complaint petition is to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 of the N.I. Act. Clause (c) of the proviso to section 138 of the N.I. Act states that if the drawer of the cheque fails to make payment of the amount of money to the payee or as the case may be, the holder in due course of the cheque within 15 days of the receipt of the notice as contemplated under clause (b), the cause of action would arise. In the scheme of things, it is apparent that when the complaint petition is filed beyond the prescribed period and condonation of delay petition is filed by the complainant, there is no necessity of hearing the accused as by that time the accused is no where in the picture. After hearing the complainant and perusing the grounds taken in the delay condonation petition and documents annexed to such petition, if the Court feels that sufficient cause has been shown by the complainant for not making the complaint within the prescribed period then the Court can condone the delay and proceed with the case. 8. In this case, after receiving the summons from the learned Court below, the petitioner entered appearance but he has neither challenged the order of taking cognizance nor the order in which delay in filing the complaint petition has been condoned. That apart, when the complainant was examined during trial, only a suggestion was given to him by the defence counsel in the course of cross-examination that he had not been medically treated by Dr. P.K.Choudhury, to which the complainant has denied. Nothing has been brought on record to show that Exts.12 and 13 are not genuine documents. Merely by giving suggestion to the complainant by the defence that he was not treated by the doctor is not sufficient for directing Dr. P.K.Choudhury to remain present at the stage of appeal for his examination to prove the legality and genuineness of the medical certificates. At the stage of defence, the petitioner could have also made a prayer before the learned trial Court to summon Dr. P.K.Choudhury to substantiate his suggestion that the complainant was never treated by him. Therefore, when the order of the learned Magistrate in condoning the delay in filing the complaint petition and taking cognizance of the offence has not been challenged and except giving suggestion to the complainant that he was not medically treated by Dr. P.K.Choudhury, nothing has been brought on record to doubt the legality and genuineness of the medical documents vide Exts.12 and 13, I am of the humble view that the learned Sessions Judge, Kendrapara is quite justified in rejecting the petition filed by the petitioner as per the impugned order dated 25.08.2018 and there is no illegality or infirmity in the said order. 9. 9. Since the Criminal Appeal is of the year 2014, the learned appellate Court shall do well to expedite the hearing of the appeal. The CRLMC application is accordingly disposed of. Let a copy of this order be communicated to the learned appellate Court for compliance.