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2021 DIGILAW 42 (SIK)

Amrit Singhi v. Radhey Shyam Swami

2021-07-01

J.K.MAHESHWARI

body2021
JUDGMENT Jitendra Kumar Maheshwari; CJ.:-- Crl. A. Nos.26/2016, 27/2016 and 10/2017 (Amrit Singhi v. Radhey Shyam Swami) are arising out of the judgment of acquittal dated 30.07.2016 passed by the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok in Private Complaint Case Nos.52/2013, 53/2013 and 39/2014. These appeals have come up for hearing after granting leave by this Court and taken up together for hearing. 2. Learned counsel representing the respective parties are heard at length. On perusal of the record it is found that the applications under Section 391 read with Section 482 of the Cr. PC, 1973 being I.A Nos.05/2018 in Crl. A. No.26/2016, and 04/2018 in Crl. A. No.27/2016 and 04/2018 in Crl. A. No.10/2017 are pending. Along with these applications certain documents have been filed, those are: Extract of Register from Sub Registrar, Mangan, North Sikkim, Power of Attorney, Registered Sale Deed dated 03.11.1998 and Land Record of plot no.205 dated 26.11.2008. 3. On perusal of the findings as recorded by the Trial Court on acquittal of the accused/respondent, it would reveal that the Court found the stand of the complainant contrary to the evidence, documents placed on record and the document of appointing the attorney to the accused and purchase of the land of the complainant by the buyers whose description is not available. It is said that the presumption as specified under Section 118 of the Evidence Act, 1872 read with Section 139 of the Negotiable Instruments Act, 1881, (for short, the NI Act), which is rebuttable is not against the accused, therefore, with the said observation the complaint was dismissed acquitting the accused. 4. After hearing learned counsel for the parties and on perusal of the fact that the land belongs to the complainant and his ancestors. The complainants are same in all the three complaints and one more complaint which is disposed of today remitting back two cases; Crl. Rev. P. No. 08 of 2015 (Radhey Shyam Swami v. Jagat Singh Singhi & Anr.) and Crl. Rev. P. No. 01 of 2016 (Jagat Singh Singhi v. Radhey Shyam Swami & Anr.). 5. Looking to the averments it would reveal that the accused was assigned to sell the property belonging to the complainants who sold their property and taken the money from the purchasers but not paid the complainant. The cheques which were issued to the complainants have been dishonored. 5. Looking to the averments it would reveal that the accused was assigned to sell the property belonging to the complainants who sold their property and taken the money from the purchasers but not paid the complainant. The cheques which were issued to the complainants have been dishonored. The complainants were required to produce the documents i.e. Sale Deeds of the purchasers and the Power of attorney executed in the favor of accused; however, those documents are relevant. Therefore, in the opinion of this Court those documents are relevant and the case must be decided after taking them on record giving due opportunity to the parties. 6. Therefore, allowing the IAs filed under Section 391 read with Section 482 Cr. PC, in the opinion of this Court, additional documents are required to be brought on record and the complainant as well as the other side must be given an opportunity to adduce the evidence on those documents. 7. With the aforesaid observation all the three judgments of acquittal stand set aside. Private Complaints No.52 of 2013, Private Complaint Case No.53/2013 and Private Complaint Case No.39/2014 be restored in its original file. The documents so filed before this Court along with application be taken on record. 8. The complainant as well as the accused would be given one more opportunity to bring any documentary evidence within three months from the date of appearance before the Trial Court and thereafter, giving them an opportunity to adduce oral evidence, the Trial Court would decide the complaint afresh within six months. Disposed of accordingly. 9. Parties are agreed to remain present before the Trial Court on 16.08.2021 by virtual mode. 10. Crl. A. No.26 of 2016, 27 of 2016 and 10 of 2017 stand disposed of accordingly.