Orissa High Court
Prafulla Mohapatra vs Gautam Pattnaik & Another ....... Opp. ... on 20 June, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1247 of 2024
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
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Prafulla Mohapatra ....... Petitioner
-Versus-
Gautam Pattnaik & another ....... Opp. Parties
For the Petitioner : Mr. Pravat Kumar Muduli, Advocate
For the Opp. Parties : Mr. Shanti Prakash Mohanty, Advocate
No.2
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
JUDGMENT
_________________________________________________________
Date of Hearing: 02.05.2024 : Date of Judgment : 20.06.2024
_________________________________________________________
S.S. Mishra, J.
1. The petitioner is an accused in a complaint case being I.C.C. Case
No.1742 of 2019 U/S. 138 of the Negotiable Instruments Act. The
opposite party no.2 is the complainant in this case. The matter is pending
before the Court of the learned J.M.F.C., Bhubaneswar. Despite the
statute provides for disposal of the cases of such nature within a
stipulated period of time, the present matter is pending trial since last 15
years.
2. The parties have approached this Court multiple times at the
interregnum stage. Various orders are being passed by this Court
expressing anguish regarding the delay caused in disposal of the
complaint. At the same time, various orders are being passed for the
purpose of fair and effective adjudication of the case. The present case
has a checkered history. It would be relevant to give the background of
the case for appreciating cause and pace at which the trial of the case has
been proceeding. The sequence of the events bereft of details narrated
herein for appreciation.
3. The petitioner and the opposite party no.1 had availed loan of
Rs.32 lakhs from the opposite party no.2 on different dates for the
purpose of execution of work at Nalco, Damanjodi & Koraput. After
completion of the work, the complainant/opposite party no.2 was given a
Cheque bearing No.449923, dated 10.03.2009 of the State Bank of India,
Industrial Estate Branch, Bhubaneswar for an amount of Rs.32 lakhs
having joint signature of both the accused persons. The opposite party
no.2 deposited the said Cheque at Axis Bank, Satyanagar, Bhubaneswar.
However, the said Cheque was dishonored by the Axis Bank due to
insufficiency of funds. Accordingly, the O.P. No.2 sent legal notice to
the petitioner and the opposite party no.1. After receipt of the said legal
notice, as they did not take any steps for payment of the amount in
question, the opposite party no.2 filed 1.C.C. No.1742 of 2009 before the
learned S.D.J.M., Bhubaneswar under Section 138 of the N.I. Act
wherein the petitioner and the opposite party no.1 were arrayed as the
accused nos.1 & 2 respectively.
4. After recording of the preliminary statement of the O.P. No.2-
Complainant, learned S.D.J.M., Bhubaneswar took cognizance of the
offence U/S. 138 of the N.I. Act against the petitioner and the O.P. No.1.
5. The O.P. No.1 was examined and cross-examined on
3/13.05.2011. The O.P. No.1 in his evidence, while admitting his and the
petitioner's signature on the Cheque, has further admitted that he himself
and the accused no.2 i.e the petitioner are jointly liable to pay back the
loan amount to the complainant/O.P.No 2.
The petitioner was examined as D.W.2 and in his evidence while
admitting his and Opp. Party No.1's signature on the Cheque, he said
that he does not know the complainant. However, he further took the
plea in his evidence that he had filed complaint case bearing 1CC
No.2632 of 2011 against the O.P. No.2-complainant and the O.P. No.1-
accused Gautam Pattnaik regarding mis-utilisation of his Cheque much
after receipt of the notice in the complaint case filed U/S. 138 of the N.I.
Act.
6. So as to discredit the evidence of the petitioner-accused wherein
he had stated that he does not know the complainant, the present O.P.
No.2 moved an application U/S. 91 Cr. P.C. inter-alia praying therein to
call for the records from the State Bank of India, Industrial Estate
Branch, Rasulgarh in respect of the Joint Current Account No.
30037990229, which stands in the name of both the accused persons
wherein the present complainant Sanjib Mohanty has signed in the
account opening form as introducer. The said application was allowed by
the trial court vide order dated 11.12.2012. Accordingly, the cost was
deposited by the complainant for production of the records from the
concerned Bank. However, subsequently, as the complainant obtained
the relevant documents under the RTI Act from the concerned Bank, he
filed those documents and the same was accepted by the Court below on
15.01.2018.
7. While the matter stood, thus, the present petitioner-accused filed a
petition U/S. 138 of the Evidence Act r/w Section-350 Cr.P.C. to pass
appropriate order for attendance of the Bank Manager to be examined as
DW, which was rejected by the Court below vide orders dated
18.05.2019 and 15.07.2019 respectively.
8. Challenging the aforesaid orders, the petitioner filed CRLMC
No.2533 of 2019 and the same was ultimately withdrawn and as such,
the orders of the Court below attained finality.
9. The O.P. No.2-complainant moved this Court in CRLMP No.1012
of 2018 seeking for a direction of earlier disposal of the 1.C.C. Case
No.1742 of 2009, wherein this Court vide order dated 13.01.2020 was
pleased to direct the learned J.M.F.C., Bhubaneswar to dispose of the
complaint as expeditiously as possible keeping in view the fact that
earlier on 01.11.2011 similar direction was issued by this Court in
CRLMC No 3599 of 2011 for disposal of the complaint within a
stipulated time frame of 3 months.
10. In the meantime, the petitioner again moved this Court by filing
CRLMC No.2855 of 2019 praying therein for a direction to the learned
J.M.F.C., Bhubaneswar for production of records from the concerned
Bank regarding the same account. This Court vide its order dated
13.01.2020 disposed of the CRLMC at the stage of admission with the
following directions:
"If the petitioner applies for certified copy of the documents in question to
the bank concerned, the said bank shall supply the same within fifteen days of
receipt of the said application or else Court shall call for the same at the
instance of the present petitioner."
11. The petitioner remained silent for more than two years, without
filing any application/petition before the Court below to call for the
records from the concerned Bank till 20.09.2022. However, on
28.09.2022, when the matter was posted for final argument, an
application straightway was moved for a direction to summon the Bank
Manager for production of documents instead of submission of
application before the Bank and obtain the certified copies of the
documents as directed by this Court.
12. Since the aforesaid CRLMC was disposed of at the stage of
admission, without noticing the complainant, the complainant moved
I.A. No.2236 of 2022 for recall of the order dated 13.01.2020. This
Court while disposing of the I.A vide order dated 12.12.2022, observed
as under:
"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 natural 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. The application dated 20.09.2022 filed by the petitioner had been
disposed of by learned S.D.J.M., Bhubaneswar vide the impugned order
dated 16.12.2023 in the light of the aforesaid order passed by this Court.
The relevant part of the impugned order reads as under:
"xxx However, after obtaining those relevant documents under the RTI
Act, complainant produced the same in the court on 15.01.2018. Hence
there is no necessity to linger the case to carry out the order of the then
J.M.F.C., Bhubaneswar passed on 11.12.2012. On the other side, the
accused persons have not assigned any reason to the satisfaction of the
court that in which way they will be prejudiced, if the above mentioned
order is not carried out. Rather the conduct of the accused clearly shows
he has the tendency to procrastinate the trial for years together on some
pretext or the other which is disclosed from the case record.
10. xxx xxx "As a sequel of above discussion, the court is of humble
opinion that there is no necessity to summon the Bank Manager. Xxxxx
11. Allowing the prayer of the accused petitioner would be nothing but
would be a futile exercise of jurisdiction wasting the time, money and
manpower of the court and the litigants. Xxx xxx."
14. The disposal of complaint case, i.e., 1.C.C. Case No 1742 of 2009
had to suffer by the aforementioned proceedings before this Court as
well as the interim proceeding before the trial Court. Therefore, the
repeated direction of this Court for speedy disposal of the complaint case
yields least result.
15. Present proceeding has been drawn up by the petitioner for
redressal of his grievance regarding bringing on record the Bank
documents as stated above to prove his defence.
16. Mr. Muduli, learned counsel for the petitioner submitted that the
impugned order passed by the Court below is directly in contravention to
the direction of this Court on 13.01.2020. This Court had expressed
displeasure for not complying its order to its letter and spirit. He
emphasized the following para of the order dated 13.01.2020 passed in
CRLMC No.2855 of 2019:
"Needless to say that, when an order is passed by the Court, it
must see that its order is complied with and if required, to take
coercive steps against the persons who has not complied with the said
order. The learned P.O. appears to have not adhered to the same in
this case. Therefore, this Court hopes and trusts that the trial court
shall do well to see that its order for summoning the aforesaid
witness and production of the document is complied with. If at all the
complainant does not want to adduce the same as evidence, the Court
however, is not bereft of jurisdiction not to insist upon the same. But,
it must give reasonable opportunity to the petitioner to adduce the
same in its defense by calling for the documents from the bank
concerned or in alternative, if the petitioner files the certified copy of
the documents to admit the same into evidence without insisting the
original as the same is permissible under the Bankers' Books
Evidence Act, 1891. However, reasonable opportunity in this regard
must be given to adduce the same as defense evidence, if the Court
recalls its earlier order of production of the said documents. In the
meantime, if the petitioner applies for certified copy of the
documents in question to the bank concerned, the said bank shall
supply the same within fifteen days of receipt of the said application
or else the Court shall call for the same at the instance of the present
petitioner.
. (Emphasis supplied)
Xxx xxx xxx"
17. Mr. Muduli, learned counsel for the petitioner further submitted
that in view of the aforementioned order of this Court, it was imperative
on the part of the trial court to allow the application moved by him.
However, on the contrary, the trial court dismissed the application filed
by the petitioner.
18. Mr. S.P. Mohanty, learned counsel for the opposite party no.2 has
relied upon the judgment of the Hon'ble Supreme Court in the case of In
Re: Expeditious Trial of the Cases U/S. 138 of the N.I. Act, 1981,
reported in 2021 SCC Online 325, wherein the Hon'ble Supreme Court
has fixed curtained the guideline to ensure the speedy disposal of the N.I.
Act cases without unnecessarily prolonging the same on sheer technical
ground. Learned counsel for the opposite party no.2 has relied upon
para-24 of the said judgment wherein the guideline has been formulated.
The opposite party no.2 has also relied upon the judgment of the Hon'ble
Supreme Court in the case of Indian Bank Association vs. Union Bank
of India reported in (2014) 5 SCC 590. He has supplied emphasis to
various directions made by the Hon'ble Supreme Court regarding the
speedy disposal of the N.I. Act cases. Para-23 of the said judgment is
reproduced herebelow:
"Directions
23. Many of the directions given by the various High
Courts, in our view, are worthy of emulation by the criminal
courts all over the country dealing with cases under Section
138 of the Negotiable Instruments Act, for which the following
directions are being given:
23.1. The Metropolitan Magistrate/Judicial Magistrate
(MM/JM), on the day when the complaint under Section 138 of
the Act is presented, shall scrutinise the complaint and, if the
complaint is accompanied by the affidavit, and the affidavit
and the documents, if any, are found to be in order, take
cognizance and direct issuance of summons.
23.2. The MM/JM should adopt a pragmatic and realistic
approach while issuing summons. Summons must be properly
addressed and sent by post as well as by e-mail address got
from the complainant. The court, in appropriate cases, may
take the assistance of the police or the nearby court to serve
notice on the accused. For notice of appearance, a short date
be fixed. If the summons is received back unserved, immediate
follow-up action be taken.
23.3. The court may indicate in the summons that if the
accused makes an application for compounding of offences at
the first hearing of the case and, if such an application is
made, the court may pass appropriate orders at the earliest.
23.4. The court should direct the accused, when he appears
to furnish a bail bond, to ensure his appearance during trial
and ask him to take notice under Section 251 CrPC to enable
him to enter his plea of defence and fix the case for defence
evidence, unless an application is made by the accused under
Section 145(2) for recalling a witness for cross-examination.
23.5. The court concerned must ensure that examination-
in-chief, cross-examination and re-examination of the
complainant must be conducted within three months of
assigning the case. The court has option of accepting affidavits
of the witnesses instead of examining them in the court. The
witnesses to the complaint and the accused must be available
for cross-examination as and when there is direction to this
effect by the court.
19. Relying upon the aforementioned judgment, learned counsel for
the opposite party no.2 submitted that defying the guideline formulated
by the Hon'ble Supreme Court 1.C.C. Case is going in the trial since
last 15 years and the delay is attributable to the accused-petitioner alone.
The accused-petitioner has been moving repeated applications before
this Court and the court below to procrastinate the proceeding on sheer
technical grounds. Therefore, he submits that the petitioner should not be
encouraged any more as the present petition being one such attempt to
delay the trial, the same shall be dismissed with heavy cost.
20. Perusal of the impugned order is amply clear that the documents
sought to be brought on record by the accused-petitioner has already
come on record at the instance of the complainant. If the petitioner seeks
to rely upon those documents for his defence, he can very well do that
instead of moving uncalled for application that to after more than 2 years
from the date of the direction of this court. As the complainant has
already placed on record the entire documents, the trial court would
definitely take into consideration the worth of those documents. That is
the reason, the trial Court had rejected the application of the petitioner on
the ground that there is no prejudice caused to the petitioner and the
entire exercise to recall the bank witness for production of the documents
would be a futility exercise in view of the fact that those documents are
already there on record.
21. In my considered view, the reasoning given by the Court below
while rejecting the application suffers no legal infirmity. It is also
important to mention that this Court has already fixed a target to
conclude the trial. Therefore, the attempt on the part of the petitioner to
prolong the trial should not be encouraged. Therefore, the learned trial
Court should proceed with the matter without further delay to conclude
the trial as per the target fixed by this Court.
22. Accordingly, the CRLMC is dismissed.
..................
S.S. Mishra
(Judge)
Orissa High Court, Cuttack
The 20th June, 2024/Subhasis Mohanty, Personal Assistant
