Anjuma Begum, W/o. Abdul Rahim @ Rahimuddin Sheikh vs State Of Assam, Represented By The Public Prosecutor, Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 397

IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ROBIN PHUKAN, J.
Anjuma Begum, W/o. Abdul Rahim @ Rahimuddin Sheikh – Petitioner
Versus
The State Of Assam, Represented By The Public Prosecutor, Assam and Anr. – Respondents
Crl.Pet. No.609 Of 2020
Decided On : 20-01-2023

Advocates Appeared:
For the Petitioner: Mr. J. Kalita.

Headnote:
N.I. Act. - Section 138 - Indian Penal Code,1860 - Section 420/406 - Code of Criminal Procedure,1973 - Sections 482 - Dishonour of a cheque - Cheating and dishonestly inducing delivery of property - Commits criminal breach of trust shall be punished with imprisonment of either description - Dispensed with cross-examination - Whether summoning/recalling of said witness is essential to just decision of case - Held, If impugned judgment and orders of courts below are examined on touchstone of principles laid down in case of this court afraid same withstand test of legal scrutiny - Right of petitioner to fair trial stands violated here in this case on account of denial of her right to cross-examination of respondent’s witness - This being factual and legal position it is duty of this court to uphold such right by interfering with same - Court have carefully considered submission of counsel for respondent and also gone through case law referred by him at time of hearing - But in view of above discussion and findings Court am unable to record concurrence to same - While right to fair trial of petitioner stands violated this court is duty bound to interfere with impugned orders by invoking power conferred - Petition Allowed.

JUDGMENT :

1. Heard Mr. Jitumoni Kalita, learned counsel for the petitioner and also heard Mr. R.K. Jain, learned counsel for the respondent No.2 and Ms. S.H. Borah, learned Addl. P.P. for the respondent No.1.

2. In this petition, under Sections 482 of the Code of Criminal Procedure, the petitioner, Smti. Anjuma Begum has put to challenge the judgment and order, dated 02.07.2020 passed by the learned Addl. Sessions Judge, Dhubri, in Criminal Revision Petition No. 03/2020, and the orders dated 01. 08.2019 and 07.12.2019, passed by the learned Addl. Chief Judicial Magistrate, Dhubri, in C. R. Case No. 2712/2018, under section 138 N.I. Act. It is to be mentioned here that the learned Addl. Chief Judicial Magistrate, Dhubri, vide impugned order, dated 01.08.2019, has dispensed with the cross-examination of complainant’s witness and vide impugned order dated 07.12.2019, the learned Addl. Chief Judicial Magistrate dismissed the petition No.6052/2019, filed by the petitioner to for giving an opportunity to cross-examine the witnesses of the complainant and vide impugned judgment and order dated 02.12.2020, the learned Addl. Sessions Judge, Dhubri has dismissed the revision petition preferred by the petitioner for setting aside the impugned order dated 07.12.2019.

3. The factual background, leading to filing of the present petition, is briefly stated as under:

“The respondent No. 2 -Md. Abdul Hamid, as complainant had instituted a C.R. Case, No.2712/2018, under section 138 N.I. Act read with section 420/406 IPC against the petitioner-Smti. Anjuma Begum as an accused, in the court of learned Addl. Chief Judicial Magistrate, Dhubri for dishonour of a cheque which has allegedly been issued by the petitioner for a sum of Rs.3,18,119/ (Rupees-three lakhs eighteen thousand one hundred nineteen rupees) in favour of the respondent No.2. Upon the said complaint the learned Addl. Chief Judicial Magistrate, Dhubri has taken cognizance and issued process to the petitioner. Accordingly, the petitioner has entered appearance before the learned court below and contested the complaint and pleaded not guilty to the offence. During the course of hearing petitioner could not appear before the learned court below on 01.08.2019, account of illness of her mother, and her engaged counsel has filed a petition before the learned court below, but, the learned court below has dispensed with the cross-examination of complainant’s witnesses and posted the case for examination of the petitioner under section 313 Cr.P.C. and defence evidence. Thereafter, the petitioner has preferred an application, No.6052, dated 07.12.2019, before the learned court below and the learned court below was pleased to dismiss the same. Thereafter, the petitioner has preferred a criminal revision petition No. 03/2019, before the court of learned Addl. Sessions Judge, Dhubri, but after hearing both sides, vide impugned judgment and order dated 02.07.2020, the learned Addl. Sessions Judge, Dhubri has dismissed the revision petition.”

4. Being highly aggrieved, the petitioners have preferred this present petition, under section 482 Cr.P.C. and contended to set aside the impugned judgments and orders on the following grounds:-

(i) That, the impugned order dated 02.07.2020, passed by the learned Addl. Sessions Judge, Dhubriin Criminal Revision Petition No.03/2020is not maintainable in law as well as on facts;

(ii) That, the learned Addl. Sessions Judge, has failed to consider the fact that on the relevant date, i.e. 01.08.2019, the mother of the petitioner was suffering from illness and on account of the same she could not appear before the learned court below and her engaged counsel had file a petition to that effect, and without application of mind, whimsically and mechanically dismissed the revision petition.

(iii) That, the learned Add. Sessions Judge, Dhubri has misconceived the revision petition as the second revision petition without going through the petition dated 07.12.2019, filed b