Prafulla Mohapatra vs Goutam Pattnaik And Another
2022 Latest Caselaw 7270 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              CRLMC No.2855 of 2019

         Prafulla Mohapatra                                        Petitioner
                                                  Mr. P.K. Muduli, Advocate



                                       -Versus-



         Goutam Pattnaik and Another               ....        Opposite Parties
                       Mr. S.P. Mohanty, Advocate for opposite party No.2

                    CORAM:
                    MR. JUSTICE R.K. PATTANAIK

                                      ORDER

12.12.2022 Order No. I.A. No.2236 of 2022

08. 1. Heard learned counsel for the petitioner and learned counsel for opposite party No.2.

2. Instant I.A. is at the behest of opposite party No.2, namely, the complainant in 1CC Case No.1742 of 2009 filed under Section 138 NI Act pending before the court of learned J.M.F.C., Bhubaneswar with a prayer to recall the order dated 13th January, 2020 passed in CRLMC No.2855 of 2019 on the grounds inter alia that the same is not tenable in law and thus, deserves to be interfered with.

3. A copy of the complaint in 1CC Case No.1742 of 2009 is at Annexure-1.

4. Learned counsel for the complainant, namely, opposite party No.2 submits that an application dated 15th November, 2012 under Annexure-2 was moved before the learned court below in 1CC Case No.1742 of 2009 followed by Annexure-3 with a

direction to the Bank in question to cause production of some documents. It is further submitted that when the documents waiting to be produced by the Bank, the demand was abandoned by opposite party No.2 since in meanwhile copies of the documents had already been obtained under the RTI Act. It is submitted that the petitioner on the other hand moved the leaned court below for taking action against the Bank officials in terms of Section 350 Cr.P.C. since the relevant documents had not been produced despite an order passed in respect thereof. It is claimed that the said application moved by the petitioner under Section 350 Cr.P.C was rejected by the learned court below and was later challenged in CRLMC No.2855 of 2019. As per the learned counsel for the opposite party No.2, the said CRLMC was subsequently withdrawn and hence, the matter attained finality. Under the above circumstances, learned counsel for opposite party No.2 submits that since the application which has originally been moved for calling of certain documents was abandoned and it was sought to be substituted by copies thereof obtained under the RTI Act, the petitioner insisted upon for the same and approached this Court in CRLMC No.2855 of 2019 and obtained order dated 13th January, 2020 whereby an opportunity was allowed in their favour for defence evidence. It is claimed that the said order in CRLMC No.2855 of 2019 was produced in 2022 by the petitioner and hence, there was inordinate delay. It is contended that opposite party No.2 had in fact moved the application which was not pursued thereafter and to that effect memo was filed before the learned court below and under the above circumstances, the requisition of the relevant documents from the Bank was unnecessary but then the petitioner demanded for such records to be produced and thereafter, moved this Court in CRLMC No.2855 of 2019 and obtained the order at the stage of admission itself before the appearance of opposite party No.2. In such view of the

matter, it is submitted that the order dated 13th January, 2020 should be recalled.

5. Learned counsel for the petitioner on the other hand submits that all the facts have been brought to the notice of the Court in CRLMC No.2855 of 2019 and considering the same, order dated 13th January, 2020 was passed with a liberty granted to the petitioner to apply for certified copies documents in question from the bank concerned and if the bank does not oblige within the stipulated time, it shall be called for at his instance. It is submitted that since such a liberty was granted to the petitioner and application was filed which is inconsonance with the direction of this Court in CRLMC No2855 of 2019 dated 13th January, 2020, any such recall of the order would amount to denying the defence to him which is already been availed of.

6. The Court perused the order of this Court dated 13th January, 2020. All facts related to the dispute involving the parties had been brought to the notice of the Court including the fact that such an application was moved by opposite party No.2 and subsequently, it was not pressed. But still the Court further proceeded to hold that if such action of the learned court below was pending compliance or it could not be complied with notwithstanding the fact that opposite party No.2 did not want to adduce any such evidence further observed that under such peculiar facts and circumstances of the case, reasonable opportunity should however be granted to the petitioner to adduce evidence by calling the documents from the Bank or in the alternative, if any such certified copies of the documents are produced, the same shall be admitted without insisting upon production of the originals as permitted under the provision of the Bankers' Books Evidence Act, 1891.

7. Mr. Muduli, learned counsel for the petitioner submits that in view of the liberty allowed in favour of the petitioner, an application has already been moved before the learned court below under Annexure-1 to the objection in I.A. No.2236 of 2022. It is further submitted that the said application for compliance of the Court's order in CRLMC No.2855 of 2019 is still pending disposal.

8. Mr. Mohanty, learned counsel for opposite party No.2 submits that the compliance ought to have been in respect of specific record which had originally been applied for from Bank but the petitioner has included more documents which was never intended by opposite party No.2 while placing the requisition. In any view of the matter, the Court is of the view that such an application which is pending before the learned court below under Anenxure-1 shall be examined and order to be passed thereon on merits and therefore, it should better be left to the discretion of the court concerned to decide.

9. Mr. Mohanty, learned counsel for opposite party No.2 cites a decision of the Apex Court in Daxaben Vrs. State Gujarat & Others decided and disposed of on 29th July, 2022 and contends that an order passed by this Court may be recalled, if it is without jurisdiction or violates the principles of nature justice etc.

10. In the judgment (supra), the Supreme Court referring to an earlier decision in New India Assurance Co. Ltd. Vrs. Krishna Kumar Pandey (Criminal Appeal No.1852 of 2019) and followed in State of Punjab Vrs. Davindar Pal Singh Bhullar and Others reported in (2011) 14 SCC 770 held that a Court is not denuded of inherent power to recall a judgment and/or order which was without jurisdiction, or in violation of principles of natural justice, or passed without giving an opportunity of hearing to a party affected by the order (emphasis is by the Court), or where an order was obtained

by abusing the process of law. Mr. Muduli, learned counsel for the petitioner submits that it is a judgment which relates to a service matter and the question as to whether an order or judgment be recalled or not was left open for a decision in appropriate proceeding and therefore, it cannot be applied to the present case. Even though considering the aforesaid judgment, it has to be concluded that judgment or order can only be recalled, if it is delivered or passed without jurisdiction, or in violation of principles of natural justice, or by not giving opportunity of hearing to the other side who is affected by thereby which is relevant for the case at hand (as highlighted earlier). In the present, admittedly, opposite party No.2 had not entered appearance in CRLMC No.2855 of 2019 which was disposed of at the stage of admission but even by such an order, opposite party No.2 is not prejudiced as all the facts related to the dispute were placed on record including the fact that opposite party No.2 did not press the matter or intended to bring the bank documents before the learned court below as originally applied for and was drawn to the notice of the Court which ultimately considering the same passed the order dated 13th January, 2020. It is not that the petitioner suppressed any such facts with regard to the application removed by opposite party No.2 etc. and under the above circumstances, the Court considered it with just and appropriate to grant liberty to the petitioner even when opposite party No.2 was not inclined to call for the record and even declined to cross-examine the petitioner. The Court, in the peculiar facts and circumstances of the case, is of the conclusion that since there is no prejudice shown to have been caused to opposite party No.2, the order dated 13th January, 2020 of this Court in CRLMC No.2855 of 2019 is not required to be called. However, the Court is also of the view that as the matter is pending since 2009 and there has been an application moved by the petitioner for consideration so as to call for the records from the Bank in compliance of the

Court's order in CRLMC No.2855 of 2019, a target should be set for the court below to consider the same and pass appropriate orders thereon on merit. The contention that the order was passed in 2020 whereas a copy of the same was produced before the learned court below in 2022, the Court is of the view that notwithstanding such delay, the liberty which is allowed in favour of the petitioner to bring in defence cannot be denied and revoked. Hence, the Court is of the view that there is no ground or justifiable reason exists for the Court to recall the order dated 13th January, 2020 passed in CRLMC No.2855 of 2019.

11. Accordingly, it is ordered.

12. In the result, I.A. stands disposed of with a direction to the learned J.M.F.C., Bhubaneswar to consider and pass appropriate orders with regard to the application dated 20th September, 2022 filed in 1CC Case No.1742 of 2009 on merit without being influenced by any of the observations made herein above and also to expedite the hearing and disposal of the complaint proceeding at the earliest preferably within a period of four months from the date of receipt of the copy of the above order.

13. A copy of the order be immediately sent to the learned S.D.J.M., Bhubaneswar for compliance.

14. Urgent certified copy of this order be granted to the opposite party No.2 as per rules.

(R.K. Pattanaik) Judge

TUDU