HIGH COURT OF SIKKIM Court No.1
(Record of Proceedings through VC)
CRL. A. No. 26/2016
AMRIT SINGHI APPELLANT (S)
VERSUS
RADHEY SHYAM SWAMI RESPONDENT (S)
WITH
CRL. A. No. 27/2016
AMRIT SINGHI APPELLANT (S)
VERSUS
RADHEY SHYAM SWAMI RESPONDENT (S)
WITH
CRL. A. No. 10/2017
AMRIT SINGHI APPELLANT (S)
VERSUS
RADHEY SHYAM SWAMI RESPONDENT (S)
For Appellant : Mr. Rahul Rathi, Advocate.
For Respondent : Mr. Venkita Subramoniam T.R., Advocate
Mr. Pem Tshering Lepcha, Advocate
Date: 01.07.2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
...
ORDER(ORAL)
Crl. A. Nos.26/2016, 27/2016 and 10/2017 (Amrit Singhi
vs. Radhey Shyam Swami) are arising out of the judgment of
acquittal dated 30.07.2016 passed by the learned Chief Judicial
Magistrate, East and North Sikkim at Gangtok in Private Complaint
Case Nos.52/2013, 53/2013 and 39/2014. These appeals have come
up for hearing after granting leave by this Court and taken up together
for hearing.
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HIGH COURT OF SIKKIM Court No.1
(Record of Proceedings through VC)
2. Learned counsel representing the respective parties are
heard at length. On perusal of the record it is found that the
applications under Section 391 read with Section 482 of the Cr. PC,
1973 being I.A Nos.05/2018 in Crl. A. No.26/2016, and 04/2018 in Crl.
A. No.27/2016 and 04/2018 in Crl. A. No.10/2017 are pending. Along
with these applications certain documents have been filed, those are:
Extract of Register from Sub Registrar, Mangan, North Sikkim, Power
of Attorney, Registered Sale Deed dated 03.11.1998 and Land Record
of plot no.205 dated 26.11.2008.
3. On perusal of the findings as recorded by the Trial Court
on acquittal of the accused/respondent, it would reveal that the Court
found the stand of the complainant contrary to the evidence,
documents placed on record and the document of appointing the
attorney to the accused and purchase of the land of the complainant
by the buyers whose description is not available. It is said that the
presumption as specified under Section 118 of the Evidence Act, 1872
read with Section 139 of the Negotiable Instruments Act, 1881, (for
short, the NI Act), which is rebuttable is not against the accused,
therefore, with the said observation the complaint was dismissed
acquitting the accused.
4. After hearing learned counsel for the parties and on
perusal of the fact that the land belongs to the complainant and his
ancestors. The complainants are same in all the three complaints and
one more complaint which is disposed of today remitting back two
cases; Crl. Rev. P. No. 08 of 2015 (Radhey Shyam Swami vs.
Jagat Singh Singhi & Anr.) and Crl. Rev. P. No. 01 of 2016 (Jagat
Singh Singhi vs. Radhey Shyam Swami & Anr.).
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HIGH COURT OF SIKKIM Court No.1
(Record of Proceedings through VC)
5. Looking to the averments it would reveal that the accused
was assigned to sell the property belonging to the complainants who
sold their property and taken the money from the purchasers but not
paid the complainant. The cheques which were issued to the
complainants have been dishonored. The complainants were required
to produce the documents i.e. Sale Deeds of the purchasers and the
Power of attorney executed in the favor of accused; however, those
documents are relevant. Therefore, in the opinion of this Court those
documents are relevant and the case must be decided after taking
them on record giving due opportunity to the parties.
6. Therefore, allowing the IAs filed under Section 391 read
with Section 482 Cr. PC, in the opinion of this Court, additional
documents are required to be brought on record and the complainant
as well as the other side must be given an opportunity to adduce the
evidence on those documents.
7. With the aforesaid observation all the three judgments of
acquittal stand set aside. Private Complaints No.52 of 2013, Private
Complaint Case No.53/2013 and Private Complaint Case No.39/2014
be restored in its original file. The documents so filed before this Court
along with application be taken on record.
8. The complainant as well as the accused would be given
one more opportunity to bring any documentary evidence within three
months from the date of appearance before the Trial Court and
thereafter, giving them an opportunity to adduce oral evidence, the
Trial Court would decide the complaint afresh within six months.
Disposed of accordingly.
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HIGH COURT OF SIKKIM Court No.1
(Record of Proceedings through VC)
9. Parties are agreed to remain present before the Trial Court
on 16.08.2021 by virtual mode.
10. Crl. A. No.26 of 2016, 27 of 2016 and 10 of 2017 stand
disposed of accordingly.
Chief Justice jk/avi
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