Simon Medicos vs Harvika Drugs And Surgical And Anr
2022 Latest Caselaw 4596 Gua

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GAHC010225432022




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

                            Case No. : Crl.Rev.P./551/2022

         SIMON MEDICOS
         A PROPRIETORSHIP FIRM, SITUATED AT PANDU PORT ROAD, ADABARI
         TINIALI, P.O. PANDU, P.S. JALUKBARI, GUWAHATI- IN THE DISTRICT-
         KAMRUP (M), ASSAM REP. BY ITS PROPRIETOR, SRI PRAVASH
         MAJUMDAR
         S/O LATE BIRENDRA CH. MAJUMDAR
         AGED ABOUT 60 YEARS
         R/O FLAT NO. 103 A, TRIBENI HOUSING COMPLEX, PANDAV NAGAR,
         GUWAHATI- 781012, P.S. JALUKBARI, DIST. KAMRUP (M), ASSAM



         VERSUS

         HARVIKA DRUGS AND SURGICAL AND ANR.
         A PARTNERSHIP FIRM, SITUATED AT HOUSE NO. 09, GIRIJANANDA CH.
         PATH, SHANKARPUR, GOPINATH NAGAR, GUWAHATI -781016, IN THE
         DISTRICT OF KAMRUP (M), ASSAM,
         REP. BY ITS PARTNER
         BIMALA CHOUDHURY,
         W/O DINESH CHOUDHURY,
         R/O SANKARDEV NAGAR,
         NILACHALPUR HILL SIDE,
          MALIGAON, GUWAHATI -781011, P.S. JALUKBARI
         DIST. KAMRUP (M), ASSAM
         SURUJSMITA SAIKIA BHUYAN
         W/O HARISH BHUYAN,
         R/O KANAKLATA PATH, KALYAN NAGAR, MALIGAON, GUWAHATI- 781011,
         .S. JALUKBARI
         DIST. KAMRUP (M), ASSAM

         2:THE STATE OF ASSAM

          REP. BY THE PP
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             ASSA

Advocate for the Petitioner   : MR. P K GARODIA

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

21.11.2022

Heard Mr. P.K. Garodia, learned counsel appearing for the petitioner, namely, Sri Pravash

Majumdar who is a proprietor of Simon Medicos.

The petitioner has filed an application under Section 401 read with Section 397 Cr.P.C

against the judgment and order dated 30.07.2022 in Misc Case No. 03/2020 in Criminal

Appeal No. 8/2020 by the learned Additional Sessions Judge No. 3, Kamrup (M) at Guwahati.

It is submitted that the petitioner has been convicted under Section 138 NI Act vide

judgment and order dated 09.12.2019 passed by the Judicial Magistrate 1 st class, Kamrup (M)

in Case No. 935/2018. An appeal being Criminal Appeal no. 8/2020 along with Misc Case No.

3/2022 was filed before the learned Sessions Court, Kamrup (M) by the petitioner and the

Misc Case was pending in the Court of Sessions Judge No. 3. The petitioner has made part

payment to the respondents but the trial Court ignored this fact while passing the order dated

09.12.2019. On 30.07.2022, the petitioner's engaged counsel failed to take steps on behalf of

the petitioner, as the learned counsel met with an accident in the month of March, 2022 and

as he was undergoing treatment under the intensive care unit of Gauhati Medical College &

Hospital for several days. The learned Additional Sessions Judge No. 3 has dismissed the Page No.# 3/4

Criminal Appeal No. 8/2020 along with Misc Case No. 3/2020 vide order dated 30.07.2022.

It is submitted that the petitioner's lawyer was medically unfit to take steps due to the

trauma after the accident. The petitioner has prayed for revival of the criminal appeal no.

8/2020 along with Misc Case No. 3/2020. It is submitted that the petitioner will be prejudiced

if the impugned order dated 30.07.2020 is not quashed and set aside.

Learned Addl. P.P. Mr. K.K. Parasar has received notice on behalf of the respondent no.

2 and he has no objection if the criminal appeal no. 8/2020 and Misc Case No. 3/2020 is

revived.

I have considered the submissions that the petitioner lawyer who met with an accident

was under treatment. He had to be in the ICU and thereafter he had to be under treatment

for several months and he was unable to take steps. Sri Dhruva Jyoti Das, learned counsel for

the petitioner could not attend Court on 02.05.2022, 14.06.2022 and 30.07.2022 and he was

still recuperating.

I have considered the submission that part payment has been made by the petitioner.

For the interest of justice and for the speedy disposal of the criminal appeal no. 08/2020 and

Misc Case No. 3/2020, the order dated 30.07.2022 is hereby quashed. The fact that the

appeal was not dismissed on merits is also taken into consideration. The Misc Case No.

03/2020, under Section 5 of the Limitation Act was dismissed and thereafter, the appeal was

restored to file and as the Misc Case was dismissed the appeal was also dismissed and the

appellant/petitioner was directed to surrender before the learned Trial Court to serve out the

sentence, as per the judgment and order dated 09.12.2019 passed by the JMFC, Kamrup and

in C.R. Case No. 395/2018.

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The criminal appeal was disposed of on the ground that the petitioner/appellant was

absent on three consecutive days. The appeal was not disposed of on merits. I believe that

Justice will be met, if the petitioner is heard and the case is disposed of on merits. The

petitioner was not at fault because his learned counsel was recuperating from a major

accident.

In view of my foregoing discussions, the order dated 30.07.2022 in Criminal Appeal No.

8/2020 and Misc Case No. 03/2020 are hereby set aside and the criminal appeal no. 8/2020

along with Misc Case No. 3/2020 is directed to be restored to file and the Additional Sessions

Judge No. 3 may pass necessary orders.

Accordingly, this criminal revision petition stands disposed of.

JUDGE

Comparing Assistant