Ashim Uddin Barbhuiya vs M/S Shri J S Pharmaceuticals
2022 Latest Caselaw 2431 Gua

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GAHC010120092021




                                THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./180/2021

            ASHIM UDDIN BARBHUIYA
            PROPRIETOR OF M/S BARBHUIYA ENTERPRISE,
            VILL- DUDHPATIL, MADHURAMUKH
            P.O. HATICHARA-7, SILCHAR-788002, DIST. CACHAR, ASSAM



            VERSUS

            M/S SHRI J S PHARMACEUTICALS
            REP. BY ITS PROPRIETOR,
            SRI DHIRAJ KUMAR SARAWGI
            S/O LATE RATAN LAL SARAWGI
            R/O S.R.C.B. ROAD, FANCY BAZAR,
            GUWAHATI-781001,
            DIST. KAMRUP (METRO), ASSAM



Advocate for the Petitioner    : MR. O LASKAR

Advocate for the Respondent : MR. T DEURI

:::BEFORE:::

                     HON'BLE MR. JUSTICE ROBIN PHUKAN
                              Date of hearing : 07.06.2022

                              Date of verdict    : 22.07.2022
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                                VERDICT (CAV)

This Criminal Revision Petition, under Sections 397/401 read with section 482 of the Code of Criminal Procedure, is filed by the petitioner Ashimuddin Barbhuyan challenging the legality, propriety and correctness of the order dated 01.04.2021, passed by the learned Sub-Divisional Judicial Magistrate, (S) No.1, Kamrup, Assam in C.R. Case No. 1873/2017. It is to be mentioned here that vide impugned judgment and order, the learned court below had dismissed the petition No. 7172, dated 17.11.2017, filed under section 294 of the Code of Criminal Procedure, for allowing him to file some documents and also dismissed another petition No. 7174 dated 17.11.2017 filed under section 243 of the Code of Criminal Procedure, 1973 read with section 45 of the Indian Evidence Act for sending the disputed cheque to the Central Forensic Laboratory for scientific opinion.

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

"The petitioner is a small businessman and running the business of

medical supplies and also medicines in the name and style of M/Ss Barbhuyan Enterprise, situated at Village-Dudhpati, Madhuramukh, Silchar. He used to purchase medicine and other relevant materials from the firm of the respondent who is a whole seller of medicine on cash as well as credit for number of years and payment thereof was made regularly. Thereafter, on 17.03.2017, the petitioner had received one legal notice demanding a sum of Rs. 96,049, with the allegation that the cheque issued by the petitioner was dishonoured. Thereafter the respondent had Page No.# 3/7

instituted a complaint case being C.R. Case No. 1873/2017. The petitioner had contested the same denied issuing any cheque to the respondent firm, although he had issued one blank cheque to one A.K. Saha in 2014 who supplied him goods including medicine, from different sellers, including the firm of the respondent. In the said case he had adduced defence evidence. During the pendency of the case the petitioner had filed aforementioned two applications, being petition No. 7172, dated 17.11.2017, under section 294 Cr.P.C. and being petition No. 7174, dated 17.11.2017, under section 243 of the Code of Criminal procedure. But, vide impugned order dated 01.04.2021, the learned court below had dismissed both the petition."

3. Being highly aggrieved, the petitioner had approached this court by filing the present petition on the ground that the learned court below has committed grave illegalities in dismissing both the petitions and that the learned court below is inconsistent in its stand and that the grounds for dismissing the petition No. 7172 is not justified and that a petition under section 294 of the Code of Criminal Procedure can be filed even after closing of evidence and that the grounds for rejection of the petition No. 7174 is also not justified and that the learned court below had invoked the provision of Section 20 and 87 of the negotiable Instrument Act which are not at all applicable and that the petitioner has the right to fair trial and by dismissing the same the petitioner had denied his right to fair trial which is enshrined in Article 21 of the constitution of India. Therefore it is contended to alow the petition by setting aside the impugned order.

4. I have heard Mr. O. Laskar, learned counsel for the petitioner and also heard Mr. T. Deori, learned counsel for the respondent.

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5. Mr. Laskar, the learned counsel for the petitioner submits that the petition No. 7172 is filed under section 294 of the Code of Criminal procedure and the same is permissible and it was not filed to fill up lacuna but to rectify the defect. It is further submitted that there was material alteration of the instrument and section 20 and 87 is attracted herein this case, and therefore, it is contended to allow the petition and to set aside the impugned order. Mr. Laskar has referred following case laws to make good of his submissions:-

(i) Rajendra Prasad vs. Narcotic cell, (1996) 6 SCC 110;

(ii) T Nagappa vs. Y.R. Murulidhar, (2008) 5 SCC 633;

6. Per contra, Mr. T. Deori, learned counsel for the respondent submits that the respondent has disputed all the documents which the petitioner wants to exhibit here in this case and as such the provision of section 294 is not attracted and therefore it is contended to dismiss the petition.

7. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the grounds mentioned therein and the documents placed on record and also gone through the impugned order passed by the learned court below, for the purpose of satisfying myself as to the correctness, legality or propriety of the finding so recorded by the learned court below. Also I have carefully gone through the case laws referred by Mr. Laskar, the learned counsel for the petitioner.

8. It appears that vide impugned order dated 01.04.2021, the learned court below has rejected the petition No. 7172, which was filed under section 294 of the Code of Criminal procedure, for allowing him to submit some documents:-

(i) Document No.1, to show that his transaction with the respondent Page No.# 5/7

starts in the year 2014,

(ii) Document No.2, the reply of the petitioner to the demand notice of the respondent,

(iii) Document No.3, the list of medicine dumped on the petitioner,

(iv) Document No.4 payment made by the petitioner to the respondent after receipt of demand notice,

which he could not submit during time of adducing his defence evidence, on the ground that the petitioner got ample opportunity to exhibit the said documents while two of the D.W. had adduced their evidence, and even if he is allowed to exhibit the document still question persists how the he will do so and merely exhibiting it is not sufficient and the same has to be duly proved, while he made no prayer for recalling the DWs.

9. The contention of the petitioner is that these documents are necessary for proper defence and to bring out the complete picture of the matter. However, the learned counsel for the respondent submits that the petition is being filed as a part of delaying tactics and that the respondent has disputed all the aforementioned documents.

10. Having examined the ground for rejection of the petition, in the light of facts and circumstances on the record and also in the light of submission of learned Advocates of both sides, I find the ground for rejection just and proper, in as much as the petitioner got sufficient opportunity to exhibit and prove the same while he had examined two defence witness. Filing of the petition after closing of the evidence, that too while the case was posted for argument, naturally raised doubt about the bona fideness of the petitioner. This court is not oblivious of the fact that a fair opportunity is required to be given to both the Page No.# 6/7

parties; else their right to fair trial will be impaired. But, at the same time this court is also conscious of the fact that where two views are reasonably possible and the lower court has taken one view, the revisional court should not substitute its own view.

11. The petitioner had also, vide petition No. 7174, dated 17.11.2017, filed under section 243 of the Code of Criminal Procedure, 1973 read with section 45 of the Indian Evidence Act prayed for sending the disputed cheque to the Central Forensic Laboratory for scientific opinion as according to him the same was shown to have issued in the year 2016, for discharge of his debt but in fact there was no such debt exist in the year and he issued the same in the year 2014 to one A.K. Saha as security and that material alteration has been done in the said cheque by overwriting the same. But, the learned court below has rejected the same on the ground that the petitioner had admitted in his evidence having been issued the same and also admitted his signature over there and even it is proved during forensic examination that the complainant has filled up the same, the accused cannot escape the onus of reverse burden envisage under the Act.

12. Having perused the documents placed on record, I find that the petitioner had admitted having issued the cheque in question to the complainant and also admitted his signature and also admitted that the seal thereon is of his firm. He further admitted having dues on Rs. 96,049/ after payment of Rs, 10,000/, on 07.11.2016. He had also admitted having deals with J.S. Pharmaceuticals since 2014, and that he had issued the cheque in question as security to Mr. A.K. Saha, who was the Manager of J. S. Pharmaceuticals. This being the factual position, the petitioner cannot escape from discharging his reverse burden as held by the learned court below. This being the admitted factual position, the Page No.# 7/7

petitioner had no convincing answer as to what purpose will be served by sending the admitted cheque to the Central Forensic Science Laboratory for scientific opinion. Thus, to the considered opinion of this court, the learned court below has not committed any illegality or impropriety in rejecting the petition No. 7174, filed by the petitioner.

13. I have carefully gone through the case laws, Rajendra Prasad (supra) and also of T Nagappa (supra) and I find that the facts and circumstances of the said cases are quite different from the facts and circumstances of the case in hand, and therefore, this court is of the considered opinion that the ratio laid down in the said cases would not come into aid of the petitioner. Therefore, detail discussion of the same is skipped.

14. In the result, I find no merit in this petition, and accordingly same stands dismissed. In the given facts and circumstances it is provided that the parties shall bear their own costs.

JUDGE

Comparing Assistant