High Court
Case Details
Crl.A. 109/2006 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) This appeal is directed against the order dated 30.3.2006 passed by the learned Judicial Magistrate, 1st Class, Hojai, Sankardev Nagar in CR Case No.179 /2004, whereby and whereunder the learned court below while acquitting the accus ed dismissed the complaint case for default under Section 256 of the CrPC filed by the appellant under Section 138 of the Negotiable Instrument Act (’NI Act’ fo r short) and under Section 420 IPC praying inter alia for payment of compensatio n under Section 357 CrPC, payment of cheque amounting to Rs.9,00,000/- (Nine lak hs) along with interest @ 12.5% from the date of issue of the cheque against the accused respondent.
Legal Reasoning
2. lso heard Mr. R De, learned Amicus Curiae appearing for the respondent. Heard Mr. SK Chakraborty, learned counsel appearing for the appellant. A 3. The appellant’s case in brief is that the appellant obtained a money dec ree against the respondent for an amount of Rs.9,11,711.50 (Rupees nine lakhs el even thousand seven hundred and eleven and fifty paise) passed vide judgment and decree dated 19.6.2003 in Money Suit No.1/2002 by the learned Additional Distri ct Judge, Hojai, Sankardev Nagar. Thereafter, the decree was put to execution vi de Money Execution Case No.12/2003 in the court of learned Civil Judge (Sr. Div) Nagaon. Before the Executing Court, respondent/judgment debtor appeared and sub mitted that the decreetal amount would be paid and accordingly, a joint compromi se petition No.517/2003 was filed on 8.9.2003. The respondent immediately paid R s.1 lakh vide account payee cheque No.280032 on condition that the rests of the decreetal amount shall be paid within 31.12.2003 and accordingly, on the aforesa id joint compromise petition, the Money Execution case was withdrawn on compromi se on 8.9.2003. Thereafter, the respondent judgment debtor issued an account pay ee cheque of Rs.8 lakhs in favour of Legal Attorney of the appellant, Sri Parima l Acharjee on 16.2.2004 vide Cheque No.281097. The appellant deposited the two c heques for collection, but both the cheques were dishonoured by the concerned U nion Bank of India, Lumding Branch, and thus, the appellant had to file a compla int case against the respondent for committing an offence under Section 138 of t he NI Act. After taking necessary steps in the court of learned Judicial Magistr ate, 1st Class, Hojai, Sankardev Nagar, the case was registered and numbered as CR Case No.179/2004. 4. Vide impugned order dated 30.3.2006, the said case was dismissed on the ground that the complainant has been remaining absent for long without adducing any evidence and as such, acquitted the accused under Section 256 of the CrPC. T he instant appeal has been preferred challenging the legality of the order dated 30.3.2006. 5. During the course of argument, Mr. Chakraborty, learned counsel appearin g for the appellant has submitted that while dismissing the complaint case and a cquitting the accused under Section 256 of the CrPC, learned trial Court did not exercise its discretionary power vested in it and as such the impugned order is liable to be set aside being unsustainable in law. Learned counsel has further submitted that the learned trial Court ought not to have dismissed the complaint case after finding prima facie case for existence of the ingredients of Section 138 of the NI Act against the accused. Acquitting the accused without trial, ha s caused gross miscarriage of justice to the appellant since the appellant was d enied an opportunity to prove her case against the accused, more so, when the At torney of the appellant had undergone a serious kidney operation and to that eff ect even the counsel of the appellant filed an application praying for adjournme nt of the case. In the instant appeal, as none appeared on behalf of the respondent, thi 6. s Court appointed Mr. De, learned counsel as Amicus Curiae to appear and argue t he case on behalf of the sole respondent. Mr. De accordingly appeared on behalf of the respondent and submitted that the complainant was granted adjournment tim e and again by the learned trial Court on mere asking for adjournment by the com plainant. Even while making a prayer for adjournment on medical ground, the comp lainant did not file any medical certificate showing that the constituted Attorn ey of the complainant, namely, Parimal Acharjee had gone for kidney operation. I nspite of non-furnishing any medical certificate, the learned trial Court consid ering the case of the petitioner granted time. Thereafter also the learned trial Court allowed prayer for adjournment again and again without even showing prope r cause for such adjournments by the complainant appellant. Learned trial Court, therefore, rightly passed the order dismissing the appeal and acquitting the re spondent, which may not be interfered with in this appeal. 7. While considering the submissions made by the learned counsel appearing for the parties, I have gone through the record of the case and the order(s) pas sed by the learned trial Court would reveal as thus;- The learned trial Court took cognizance of the complaint case on 17.4.2004. On t hat day, the complainant was present and he was examined on oath under Section 2 00 of the CrPC. Finding prima facie case under Section 138 of the NI Act, while taking cognizance of the case, the court directed to issue summon to the accused on 17.6.2004. On 17.6.2004, the complainant was absent showing causes. Since no summon was iss ued to the accused, the trial Court passed an order to issue fresh notice to the accused fixing the next date 29.7.2004. Again on 29.7.2004, the complainant was absent, summon was also not serv ed upon the accused and hence, next date was fixed on 13.9.2004 for appearance o f the accused as well as the complainant. On 13.9.2004, the complainant was not present. However, filed an applica tion showing causes. As summons were not served on the accused, next date was fi xed on 25.10.2004. On 25.10.2004 again complainant was not present by showing causes. Next date was fixed on 15.12.2004. On 15.12.2004, learned trial Court was on leave but the complainant was present on that day. Next date was fixed on 24.12.2005 when both the parties were not pr esent, i.e. the complainant as well as the accused. The court granted time consi dering the prayer for adjournment fixing 18.4.2005 as next date. On 18.4.2005, the complainant again was not present. The accused was also not pr esent. However, he filed an application with medical certificate. So, the next d ate was fixed on 13.5.2005. On 13.5.2005, both the accused as well as the complainant were absent by filing an application showing causes for such absence and the next date was fixed on 2. 6.2005. On 2.6.2005, the complainant was not present. The accused was present. Learned c ounsel appearing on behalf of the accused prayed for granting bail to the accuse d. Prayer for granting bail was allowed fixing 16.7.2005 for evidence. On 16.7.2005, i.e. on the next date, both the parties were absent and therefore, the learned trial Court fixed 29.8.2005 for evidence. On the subsequent dates, i.e. 29.8.2005, 6.10.2005 and 22.11.2005 both the accus ed as well as the complainant were absent. On 17.12.2005, the accused appeared before the court and filed application showi ng causes as to why he could not appear before the court on 22.11.2005 and praye d for allowing him to remain on previous bail. The prayer was allowed fixing 30. 12.2005 as the next date. On 30.12.2005, the complainant was not present by showing causes, accused was pr esent. Next date fixed on 7.2.2006. On 7.2.2006 also, the complainant was absent. However, filed an application pray ing for adjournment but learned counsel appearing for the complainant was found absent even after repeated calls without placing the petition so filed. The accu sed was present and the learned counsel for the accused submitted to dismiss the complaint for absence of the complainant. However, as the case was under Sectio n 138 of the NI Act, for the ends of justice, learned trial Court granted time b y allowing the petition filed by the complainant making it clear that the adjour nment was granted as a last chance to the complainant and fixed on 24.2.2006 for evidence. Again on 24.2.2006, the complainant was found absent. However, the learned trial Court granted time till 30.3.2006. On 30.3.2006, the accused was present but the complainant was absent without any steps. Learned trial Court, therefore, invoking power under Section 256 CrPC di smissed the complaint case and acquitted the accused. However, later on, a petit ion was filed by the complainant praying for adjournment but none appeared for t he complainant for placing the petition before the court. In view of the same, l earned trial Court dismissed the petition so filed by the complainant. 8. Challenging the legality of the aforesaid order dated 30.3.2006, the ins tant appeal has been preferred by the appellant/complainant. In view of the vari ous orders passed by the learned trial Court which prima facie shows that the co mplainant was absent for 14 days and hence, finding no other alternative, the le arned trial Court had to pass the impugned order. 9. In view of the above, I find no illegality or infirmity in passing the i mpugned order. I am of the opinion that no interference with the impugned order is called for in the facts and circumstances of the case. 10. 11. The appeal has no merit and is dismissed. Send down the lower court record. 12. Before parting with the case, I would like to put on record the valuable assistance rendered by Mr. R De, learned Amicus Curiae in arriving at a decision as aforesaid. Accordingly, he is entitled to a professional fee which is quantified at Rs.5000/- (Rupees Five Thousand) only.