Bijay Kumar Agarwal vs M/S Sk Construction And Anr
2022 Latest Caselaw 4691 Gua

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GAHC010042222021




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

                                 Case No. : I.A.(Crl.)/148/2021

            BIJAY KUMAR AGARWAL
            R/O. FLAT NO. 402, 4TH FLOOR, KIRANSHREE APARTMENT, BYE LANE NO.
            2, TARUN NAGAR, ABC, GHY- 5,
            DIST. KAMRUP(M), ASSAM

            VERSUS

            M/S SK CONSTRUCTION AND ANR.
            REP. BY ITS PROPRIETOR SURUJ ALI, R/O. BARKHOLA, HOJAI, ASSAM,
            PIN- 782435

            2:SURUJ ALI
             M/S S K CONSTRUCTION
             BARKHOLA
             HOJAI
            ASSAM
             PIN- 78243

Advocate for the Petitioner   : MR. S MITRA

Advocate for the Respondent :


             Linked Case : Crl.A./317/2019

            BIJAY KUMAR AGARWAL
            R/O- FLAT NO. 402

            4TH FLOOR
             KIRANSHREE APARTMENT
             BYE LANE NO. 2
            TARUN NAGAR
            ABC GUWAHATI-5
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           DISTRICT- KAMRUP(M)
           ASSAM.

           VERSUS

           M/S SK CONSTRUCTION AND ANR
           REPRESENTED BY ITS PROPRIETOR SURUJ ALI
           R/O- BARKHOLA
           HOJAI
           ASSAM.

           2:SURUJ ALI
           M/S S K CONSTRUCTION
            BARKHOLA
            HOJAI
           ASSAM-782435.
            ------------
           Advocate for : MR. D K JAIN
           Advocate for : MR. N K HALOI appearing for M/S SK CONSTRUCTION AND ANR



                                    BEFORE
                       HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                     ORDER

Date : - 29.11.2022.

Heard Mr. S. Mitra, learned counsel for the applicant and also heard Mr. K.M. Hasan, learned counsel for the respondents.

2. This petition under Section 391 of the Code of Criminal Procedure, 1973, is preferred by applicant Bijay Kumar Agarwal for allowing him to adduce further evidence as PW.1 either before this Court or before the learned trial Court and to take the same into record, while adjudicating the Criminal Appeal i.e. Criminal Appeal No.317/2019.

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

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"There was business transaction between the applicant and the respondent.

In course of the said business transaction and in discharge of his legal liability, the respondent has issued three cheques, bearing Nos.338719, 338717 and 338720. Thereafter, the applicant has deposited the same with his Banker for encashment. But, the same returned dishonoured due to insufficient fund. Thereafter, the applicant has issued legal notice to the respondent demanding payment of the cheque amounts. But, despite receiving the notice, the respondent has failed to make payment of the amount.

Being aggrieved, the applicant had instituted one C.R. Case,

No.2563C/2017, before the Court of learned CJM, Kamrup (M) at Guwahati and thereafter, hearing the learned Advocates of both sides, the learned

Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati has acquitted the respondent vide judgment and order dated 06.04.2019. Being aggrieved by the said judgment and order, the applicant has preferred an appeal, being Criminal Appeal No.317/2019. Pending disposal of the appellant the applicant has preferred the present interlocutory application for allowing him to adduce further evidence as PW.1 and to exhibit Annexure-C, D and E, respectively, before this Court or before the learned Court below."

4. Mr. S. Mitra, the learned counsel for the applicant, submits that the engaged counsel of the applicant committed some mistakes in filing the Complaint Case and also in conducting the same. Mr. Mitra further submits that the applicant has submitted all the relevant facts and documents to his earlier counsel. But, he chooses not a brought those facts and documents on the record, as to why the respondents have issued the cheques to the applicant. It is the further Page No.# 4/5

submission of Mr. Mitra that the applicant is an uneducated layman and not understanding the provisions of law and he was fully dependent upon his former counsel and acted on his advise and therefore, Mr. Mitra contended to allow the applicant to adduce evidence and exhibit Annexure-C, D and E. Mr. S. Mitra, also referred the following case laws, in support of his submissions:

1) Rafiq and another vs. Munshilal and another , reported in AIR 1981 SC

140,

2) Swapan Gope vs. In-Charge, HE-ER, ONGC Ltd. and others , reported in

2018 SCC OnLine Tri 102,

3) Zahira Habibullah H. Sheikh and another vs. State of Gujarat , reported

in (2004) 4 SCC 158 and

4) Smti Lachi Tiwari and others vs. Director of Land Records and other ,

reported in AIR 1984 SC 41.

5. Per contra, Mr. M. Hasan, learned counsel for the respondents has submitted that there is no merit in this petition and the applicant may not be allowed to fill up the lacuna in this case and the ratio laid down in the cases referred by Mr. Mitra, are not applicable here in his case, as this is a complaint under Section 138 of the N.I. Act. Mr. Hassan also referred to one case law in the case of H.N. Jagadeesh vs. R. Rajeshwari, reported in (2019) 16 SCC 730 in support of his

submission and accordingly, Mr. Hassan contended to dismiss the petition.

6. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and I find substance in the submission, so advanced by Mr. Hassan, learned counsel for the respondents. In the case of H. N. Jagadeesh (supra), the Hon'ble Supreme Court has held that the ratio laid down in the case of Zahira Habibullah Page No.# 5/5

H. Sheikh and another (supra), cannot be applied in a complaint case under

Section 138 of the N.I. Act which is quasi criminal in nature.

7. There is no doubt that on account of mistake(s), committed by the engaged counsel, the litigant should not suffer. Mr. Mitra, the learned counsel for the applicant has rightly pointed this out during hearing and the ratio laid down in the cases referred by him in this regard also fortified the same. But, the same have to be treated to be restricted to their own facts. In this case in hand, the factual scenario is quite different. Here the case is a complaint case under section 138 of N.I. Act and the proceeding is quasi criminal in nature. And allowing the present application on the grounds so assigned by the applicant would be amount to giving an opportunity to him to fill up the lacuna of the case, and if allowed it would cause grave prejudice to the respondent.

8. In the result, I find no merit in this application and the same is dismissed. The Registry shall list the Criminal Appeal No.317/2019, for hearing in usual course.

JUDGE

Comparing Assistant