Orissa High Court
Bibekananda Swain vs Nirmal Chandra Mohanty on 5 August, 2019
Author: S.K.Sahoo
Bench: S.K.Sahoo
CRLMC No. 3302 of 2018
Bibekananda Swain ...... Petitioner
-Versus-
Nirmal Chandra Mohanty
and another ...... Opp. Parties
08. 05.08.2019 Heard Mr.B. B. Swain, learned counsel for the
petitioner.
The petitioner Bibekananda Swain has filed this
application under section 482 Cr.P.C. challenging the
impugned order dated 25.08.2018 passed by the learned
Sessions Judge, Kendrapara in Criminal Appeal No. 01 of
2014 in rejecting the petition filed by the petitioner for a
direction to Dr. P.K.Choudhury to remain present in
Court for his examination to prove the legality and
genuineness of the medical certificates vide Exts. 12 and
13.
The opposite party no.1 Nirmal Chandra
Mohanty filed a complaint petition in the Court of learned
S.D.J.M., Kendrapara vide I.C.C Case No. 164 of 2010
against the petitioner for commission of offence under
section 138 of the Negotiable Instrument Act, (hereafter
"N.I. Act"). The case was transferred to the Court of
learned J.M.F.C., Kendrapara for trial. The learned trial
Court vide judgment and order dated 12.12.2013 found
the petitioner guilty under section 138 of the N.I. Act and
sentenced him to undergo simple imprisonment for one
year and to pay a compensation of Rs.6,00,000/- (six
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lakhs) under section 357(3) of Cr.P.C., in default of
payment of compensation, to suffer simple imprisonment
for two months.
The petitioner preferred Criminal Appeal No.01
of 2014 in the Court of learned Sessions Judge,
Kendrapara against the aforesaid judgment and order of
conviction passed by the learned J.M.F.C., Kendapara,
which is subjudiced.
Learned counsel for the petitioner contended
that the complaint petition should have been filed by
25.02.2010 in view of section 142(1) (b) of the N.I. Act,
but it was filed only on 27.04.2010 and medical
certificates issued by Dr. P.K.Choudhury were filed along
with delay condonation petition for condoning the delay
and showing the sufficient cause for not making the
complaint within the stipulated period. Learned S.D.J.M.,
Kendrapara, where the case was initially pending,
condoned the delay on the basis of the medical
certificates. It is further contended that since Dr.
P.K.Choudhury has not been examined to prove the
medical certificates, therefore, it cannot be said that the
medical certificates vide Exts.12 and 13 are genuine and
on the basis of such certificates, the learned S.D.J.M.
should not have condoned the delay in filing the
complaint petition after the prescribed period. It is
further contended that since examination of Dr.
P.K.Choudhury was essential to prove the genuineness of
the medical certificates stated to have been issued by
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him, the petitioner filed a petition before the learned
appellate Court and the learned appellate Court should
not have rejected the same as in view of section 391 of
Cr.P.C., it has got power to take further evidence or to
direct it to be taken by the learned Magistrate.
On perusal of the impugned order, it appears
that the learned Sessions Judge has observed that the
order relating to condonation of delay and the order of
taking cognizance have not been challenged by the
petitioner and petition for summoning the doctor has
been filed just to prolong the litigation and to harass the
opposite party and accordingly, the petition filed by the
petitioner was rejected.
The petitioner has not annexed the order of the
learned S.D.J.M., Kendrapara by which the delay in filing
the complaint petition was condoned.
Proviso to section 142(1) (b) of the N.I. Act
states that cognizance of a complaint may be taken by a
Court after the prescribed period, if the complainant
satisfies the Court that he had sufficient cause for not
making the complaint within such period. In view of
section 142(1) (b) of the N.I.Act, the complaint petition
is to be filed within one month of the date on which the
cause of action arises under clause (c) of the proviso to
section 138 of the N.I. Act. Clause (c) of the proviso to
section 138 of the N.I. Act states that if the drawer of
the cheque fails to make payment of the amount of
money to the payee or as the case may be, the holder in
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due course of the cheque within 15 days of the receipt of
the notice as contemplated under clause (b), the cause
of action would arise. In the scheme of things, it is
apparent that when the complaint petition is filed beyond
the prescribed period and condonation of delay petition is
filed by the complainant, there is no necessity of hearing
the accused as by that time the accused is no where in
the picture. After hearing the complainant and perusing
the grounds taken in the delay condonation petition and
documents annexed to such petition, if the Court feels
that sufficient cause has been shown by the complainant
for not making the complaint within the prescribed period
then the Court can condone the delay and proceed with
the case.
In this case, after receiving the summons from
the learned Court below, the petitioner entered
appearance but he has neither challenged the order of
taking cognizance nor the order in which delay in filing
the complaint petition has been condoned. That apart,
when the complainant was examined during trial, only a
suggestion was given to him by the defence counsel in
the course of cross-examination that he had not been
medically treated by Dr. P.K.Choudhury, to which the
complainant has denied. Nothing has been brought on
record to show that Exts.12 and 13 are not genuine
documents. Merely by giving suggestion to the
complainant by the defence that he was not treated by
the doctor is not sufficient for directing Dr.
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P.K.Choudhury to remain present at the stage of appeal
for his examination to prove the legality and genuineness
of the medical certificates. At the stage of defence, the
petitioner could have also made a prayer before the
learned trial Court to summon Dr. P.K.Choudhury to
substantiate his suggestion that the complainant was
never treated by him. Therefore, when the order of the
learned Magistrate in condoning the delay in filing the
complaint petition and taking cognizance of the offence
has not been challenged and except giving suggestion to
the complainant that he was not medically treated by Dr.
P.K.Choudhury, nothing has been brought on record to
doubt the legality and genuineness of the medical
documents vide Exts.12 and 13, I am of the humble view
that the learned Sessions Judge, Kendrapara is quite
justified in rejecting the petition filed by the petitioner as
per the impugned order dated 25.08.2018 and there is
no illegality or infirmity in the said order.
Since the Criminal Appeal is of the year 2014,
the learned appellate Court shall do well to expedite the
hearing of the appeal.
The CRLMC application is accordingly disposed
of.
Let a copy of this order be communicated to
the learned appellate Court for compliance.
.............................
S.K.Sahoo, J.
PKSahoo 6