Orissa High Court
Tikil Pradhan vs Purna Chandra Das .... Opposite ... on 31 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3586 of 2024
Tikil Pradhan .... Petitioner(s)
Mr. P. K. Mishra, Advocate
-versus-
Purna Chandra Das .... Opposite Party(s)
Mr. R. N. Prusty, Advocate
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 31.01.2025
02. 1. Heard.
2. The petitioner is aggrieved by the order dated 05.02.2024
passed by the learned J.M.F.C., Rural, Rourkela in 1.C.C. Case
No.17 of 2021, whereby her application under Section 315 Cr.P.C.
to lead defence evidence by examining herself as the witness by
filing the evidence by way of affidavit has been turned down.
3. The impugned order dated 05.02.2024 passed by the
learned J.M.F.C., Rural, Rourkela in 1.C.C. Case No.17 of 2021
was challenge by the petitioner in Criminal Revision No.06 of
2024. The learned 1st Additional Sessions Judge, Rourkela vide
judgment dated 08.08.2024 has rejected the Criminal Revision
Petition filed by the petitioner on the ground that the Revision
Petition is not maintainable. The petitioner has assailed both the
order and judgment dated 05.02.2024 passed by the learned
J.M.F.C., Rural, Rourkela in 1.C.C. Case No.17 of 2021 as well as
the judgment dated 08.08.2024 passed by the learned 1st Additional
Sessions Judge, Rourkela in Criminal Revision No.06 of 2024.
4. In so far as the later judgment under question is concerned,
I find no reason to interfere, because the Revisional Court has
rightly rejected the Revision Petition being not maintainable as the
order dated 05.02.2024 passed by the learned J.M.F.C., Rural,
Rourkela being an interlocutory order, the Revision indeed was not
maintainable.
5. In so far as the order by which the application of the
petitioner under Section 315 Cr.P.C. in concerned, Mr. Mishra,
learned counsel for the petitioner has relied upon the judgment of
the Hon'ble Supreme Court in the case of Indian Bank Association
and others vrs. Union of India and others reported in (2014) 5
SCC 590. Relying upon paragraph-23 of the said judgment, Mr.
Mishra, submits that the impugned order is not sustainable in view
of the settled position of law. Relevant would be to reproduce
paragraph-23 of the said judgment:-
<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 directs 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
scrutinize 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, make 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.=
6. I have perused the materials placed on record and the
judgment cited at the Bar. I am of the considered view that the
proceeding under Section 138 of the N.I. Act being a quasi-criminal
summary proceeding, both the complainant and the accused are
entitled to lead their evidence by filing affidavit in their
examination-in-chief. However, they would be subjected to cross-
examine by the party against whom the affidavit is filed.
7. In that view of the matter, the impugned order dated
05.02.2024 passed by the learned J.M.F.C., Rural, Rourkela in
1.C.C. Case No.17 of 2021 is set aside. The petitioner is allowed to
file his evidence in-chief by way of affidavit and she shall be
subjected to cross-examine by the complainant.
8. Regard being had to the fact that the complaint case is
pending since 2021, it is expected that the learned trial Court should
fix a particular date for cross-examination of the witness namely the
petitioner and conclude the cross-examination on the same day. The
entire process shall be completed within a period of three months
hence.
9. With this observation, the CRLMC is disposed of.
(S.S. Mishra)
Judge
Swarna
Location: High Court of Orissa
