Gauhati High Court
Lakhi Nath Das @ Samir vs The State Of Assam And 2 Ors on 28 January, 2022
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GAHC010039852020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./181/2020
LAKHI NATH DAS @ SAMIR
S/O SRI TULSHI DAS, R/O NIRMAL BHITAR GAON, P.O., P.S. AND DIST-
JORHAT, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MUKUT DUTTA
S/O SRI MUNA NATH DUTTA
R/O BANMUKA GOHAIN GAON
P.O.
P.S. AND DIST-SIVASAGAR
ASSAM
PIN-785640
3:KUMUD BARUAH
S/O SRI HARI KANTA BARUAH
R/O BANMUKA GOHAIN GAON
P.O.
P.S. AND DIST-SIVASAGAR
ASSAM
PIN-78564
Advocate for the Petitioner : MR. P J SAIKIA
Advocate for the Respondent : PP, ASSAM
BEFORE
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HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 28-01-2022
Order dated 21.11.2019, passed by the learned Chief Judicial
Magistrate, Sivasagar, in G.R. Case No. 451/2011 is challenged in this
petitioner under section 482 Cr.P.C. by the petitioner Sri Lakhi Nath Das @
Samir. Be it noted here that vide impugned order dated 21.11.2019, the
learned Chief Judicial Magistrate, Sivasagar ordered for re-examination of
P.W. 9 and calling the certificate under section 65B.
The factual matrix leading to filing of the present petition is stated
as under:
The petitioner is an accused in G.R. Case No. 451/2021, under
section 406/420 of the IPC, which was registered on the basis of one FIR
lodged by Sri Mukut Dutta and Sri Kumud Dutta, wherein it is alleged that
the petitioner took sum of Rs. 6,90,000/-, for providing employment to
them but neither he provided any employment to the complainants nor
returned the money to them. On the basis of said complaint, Sivasagar
P.S. Case No. 168/2011, under section 406/420, has been registered and
the same is duly investigated and the investigation culminated in
submission of charge-sheet against the petitioner under section 406/420
of IPC.
Accordingly, the petitioner appeared before the learned Chief Judicial
Magistrate, Sivasagar and the learned Chief Judicial Magistrate after
hearing both sides frame charges against the petitioner under section
406/420 of IPC. Thereafter, the learned Chief Judicial Magistrate has
examined as many as nine witnesses including one Bank Official namely,
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Sri Diganta Bora, the Deputy Manager of SBI, Katakipukhuri, Jorhat. The
said Manager was examined to prove the Bank statement of the petitioner,
but during examination, the said witness (P.W.9) could not produce the
certificate under section 65B of the Evidence Act, as without the certificate
under section 65B of the Evidence Act, the Bank statement has no
evidentiary value. Then the learned Chief Judicial Magistrate, on a prayer
being made by the learned Additional P.P. has summoned P.W.9 for re-
examination, after calling certificate under section 65B of the statement of
Bank account of the petitioner.
Being aggrieved, the petitioner preferred this revision petition
challenging the legality propriety and correctness of the order dated
21.11.2019.
Heard Mr. R.S. Mishra, the learned counsel for the petitioner and Mr.
M.P. Goswami, the learned Additional Public Prosecutor for the State. It is
submitted at the bar that a criminal petition being no. 182 /2020, is
preferred by petitioner and the said criminal petition was disposed of vide
order dated 02.11.2021 and similar order may be passed here in this
petition also and the petition may be disposed of at this stage itself. The
learned counsel for the petitioner further submits that the petition hs been
filed by the leaned Additional P.P. to fill up lacunae.
Having heard the submission of learned advocates of both sides. I
have gone through the petition and the documents placed on record and
also the impugned order dated 21.11.2019, it appears that the impugned
order dated 21.11.2019, was passed on the basis of one application field
by the learned Additional Public Prosecutor, for re-examination of P.W.9
again. Then, the learned Chief Judicial Magistrate in exercise of power
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under section 311 of Cr.P.C vide impugned order dated 21.11.2019
ordered for issuing summon to P.W.9 calling for certificate under section
65Balong with statement of account belonging to the petitioner. The
learned counsel for the petitioner submits that the power under section
311 of the Cr.P.C. ought not have been exercised by the learned Court
below while the case was pending for argument after conclusion of
evidence but a mere perusal of section 311 of Cr.P.C., reveals that the
power is discretionary and the same can be exercised at the stage of trial
before pronouncement of judgment. In the given facts and circumstances
of the case in hand, it cannot be said that the learned Court below has
allowed the petition filed by the learned Additional Public Prosecutor to fill
up the lacunae. P.W.9 has been examined and summoned to re-examine
to prove the statement of account of the petitioner maintained by the
Bank and without a certificate under section 65B of the Evidence Act, the
statement of account cannot be admitted in evidence.
Having tested the legality, propriety and correctness of the order
dated 21.11.2019, on the touchstone of the principles discussed above,
this Court is inclined to hold that the impugned order suffers from no
illegality or impropriety. In the result, we find no merit in this petition.
Accordingly, the same stands dismissed.
It is provided that the learned Court below shall proceed to dispose
of the G.R. Case No. 451/2021, under section 406/420 of the IPC as early
as possible, preferably within a period of two (2) months from today.
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JUDGE
Comparing Assistant
