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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SOUMITRA SAIKIA, J.
Loknath Sonowal S/o Late Bhula Sonowal – Appellant
Versus
Ajoy Poddar S/o Shri Biswanath Poddar – Respondent
Crl. Pet. No. 304 of 2022
Decided On : 01-09-2023
Section 138 of Negotiable Instruments Act, 1881 - Section 313 - Code of Criminal Procedure, 1973 – Section 254 (2), 313 - Criminal Petition – Dishonor of cheque due to insufficient funds - Whether evidence that may be adduced by the said witness would be necessary for arriving at a just decision of case – Held, petitioner has failed to satisfy Court that evidence of the witness proposed to be examined in connection with claim made by complainant/opposite party - Further, no explanation has been forwarded by petitioner in respect of delay that had occurred in taking steps on proposed witness as has been reflected in order - In Suo Motu Writ (Criminal), Apex Court by order had laid down guidelines on basis of a pilot study conducted by the amicus curiae appointed by Apex Court in respect of conduct of trials on complaints filed under Section 138 of NI Act - Apex Court had laid down guidelines for expeditious disposal of complaints registered under NI Act - Although, said guidelines were in respect of 5 High Courts mentioned in said order, these guidelines would be equally applicable in respect of all High Courts for early disposal of complaints filed under NI Act - In present proceeding complainant was initially lodged in year 2014-15 - Criminal Petition dismissed.
Key Points: - The accused had previously availed Section 254(2) Cr.P.C. to seek permission to adduce defence evidence, but failed to summon the witness due to incorrect address service (!) (!) . - The court observed that the accused did not display due diligence and the petition was filed only after defence evidence was closed (!) (!) . - Section 311 Cr.P.C. empowers the court to summon material witnesses or examine persons at any stage, but the court must be satisfied that it is essential for a just decision (!) (!) . - The trial court must consider whether the evidence is necessary for a fair adjudication and whether the applicant has satisfied the court regarding its relevance and timeliness (!) (!) . - The petitioner failed to satisfy the court that the proposed witness was relevant or that the delay was justified (!) (!) . - Apex Court guidelines for expeditious disposal of Section 138 NI Act cases are equally applicable to all High Courts and require prompt disposal (!) . - The court found no merit in the petition and dismissed it, upholding the earlier orders (!) .
JUDGMENT :
SOUMITRA SAIKIA, J.
1. This Criminal Petition is filed by the petitioner assailing the order dated 03.03.2021 passed by the Additional Chief Judicial Magistrate (CJM in short), Dibrugarh dismissing the Petition No. 115/2020 in NI Case No. 20c/2014 as well as the order dated 29.11.2021 passed by the Sessions Judge, Dibrugarh in Criminal Revision Case No. 09(1)/2021 dismissing the Crl. Revision Petition filed by the present petitioner and upholding the order dated 03.03.2021 passed by the Court of Additional CJM, Dibrugarh.
2. The petitioner is a resident of No. 2 Kathalguri Gaon under jurisdiction of Duliajan Police Station in the district of Dibrugarh. The petitioner is a contractor by profession who undertakes contractual works in the Raiwlays, P.W.D. OIL etc. The opposite party in the present petition filed a complaint petition under Section 138 of Negotiable Instruments Act (N.I. Act in short) before the Court of CJM, Dibrugarh on 06.02.2014. In the said petition it was alleged that the present petitioner had approached the opposite party/complainant for supply of materials to carry out a project of M/s. M.M. Enterprise in connection with the construction of Pachighat for Boginadi Railway Station main building to the tune of Rs.15,00,000/- (Rupees Fifteen Lakhs only). An agreement dated 03.02.2013 was also executed by and between the present petitioner and the opposite party to the effect that the net profit after deduction of all expenses was agreed between them to be in the ratio of 60:40 per cent. It is stated that against the total outstanding dues of Rs.18,80,000/- (Rupees Eighteen Lakhs Eighty Thousand only), the petitioner made a part payment of Rs.4,00,000/- (Rupees Four Lakhs only) in cash and there was an outstanding balance of Rs.14,80,000/- (Rupees Fourteen Lakhs Eighty Thousand only). Thereafter, another agreement was entered by and between the petitioner and the opposite party which was executed on 27.05.2013. The petitioner sought for further support of building materials worth of Rs.12,00,000/- (Rupees Twelve Lakhs only) from the opposite party and admitted his liability to the tune of Rs.29,00,000/- (Rupees Twenty Nine Lakhs only) but when the opposite party deposited the cheques issued by the petitioner in the account of the opposite party, they were dishonoured for the reason “exceeds arrangement.” Being aggrieved, the opposite party filed the complaint petition which was registered and numbered as NI Case No. 20c/2014.
3. The petitioner upon receipt of summons appeared before the Competent Court and the evidence of the complainant/opposite party was closed on 29.06.2016 and the case was posted for statement of the defence. On 24.05.2017 the statement of the accused/ petitioner was recorded under Section 313 Cr.P.C. wherein the petitioner stated that he wished to adduce evidence on his behalf and the case was posted for defense witness on 06.07.2017. The petitioner was examined-in-chief and his cross-examination was reserved on 29.08.2017. During the course of the proceedings the petitioner filed a petition being Petition No. 728/2018 dated 13.03.2018 before the Court of Additional CJM, Dibrugarh, praying for permitting the petitioner to adduce the evidence of one Nizamuddin Ahmed, who is the engineer of Department N.F. Railway Department. The Court fixed the matter for objection and hearing of the petition on 27.03.2018. The opposite party/complainant filed their objection on 27.03.2018 and after hearing both the parties vide order dated 11.04.2018 the petitioner was permitted to adduce the evidence of the said Nizamuddin Ahmed as a defence witness and directed the petitioner to take steps upon the said Nizamuddin Ahmed for his appearance to adduce evidence. The petitioner took steps for the summons on the said Nizamuddin Ahmed on 14.06.2018, 22.06.2018 and 23.08.2018 but the summons issued to the said Nizamuddin Ahmed was sent to Dhubri instead of Dhemaji and there was no record of the notice bei
The accused has the right to present defense witnesses in a trial, and the trial court must issue summons unless there are valid grounds for refusal, ensuring that fair trial rights are upheld.
The court emphasized the accused's right to examine witnesses in defense without needing to specify their relevance, enabling fair trial rights.
Witnesses already examined by one party cannot be summoned by the opposite party without valid justification, as this could lead to an abuse of process and compromise the fairness of the trial.
The court emphasized the limited scope of inquiry at the stage of issuance of summons under Section 138 of the NI Act and the applicability of the rebuttable presumption under Section 139 of the NI A....
The court emphasized that the power under Section 311 Cr.PC should be used judiciously and not as a means to delay proceedings or fill up lacunae in the prosecution's case.
The deliberate absence and failure to avail opportunities for defense by the petitioner amounted to a voluntary decision, justifying the trial court's judgment and sentence. The availability of an ef....
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