LOKNATH SONOWAL Vs. AJOY PODDAR

JUDGEMENT

(1.) This Criminal Petition is filed by the petitioner assailing the order dtd. 3/3/2021 passed by the Additional Chief Judicial Magistrate (CJM in short), Dibrugarh dismissing the Petition No.106/2020 in NI Case No.19c/ 2014 as well as the order dtd. 29/11/2021 passed by the Sessions Judge, Dibrugarh in Criminal Revision Case No.08(1)/2021 dismissing the Crl. Revision Petition filed by the present petitioner and upholding the order dtd. 3/3/2021 passed by the Court of Additional CJM, Dibrugarh.

(2.) The petitioner is a resident of No.2 Kathalguri Gaon under jurisdiction of Duliajan Police Station in the district of Dibrugarh. The petitioner is a contractor by profession who undertakes contractual works in the Raiwlays, P.W.D, OIL etc. The opposite party in the present petition filed a complaint petition under Sec. 138 of Negotiable Instruments Act (N.I. Act in short) before the Court of CJM, Dibrugarh on 6/2/2014. In the said petition it was alleged that the present petitioner had approached the opposite party/complainant for supply of materials to carry out a project of M/S.M.M. Enterprise in connection with the construction of Pachighat for Boginadi Railway Station main building to the tune of Rs.15,00,000.00 (Rupees Fifteen Lakhs only). An agreement dtd. 3/2/2013 was also executed by and between the present petitioner and the opposite party to the effect that the net profit after deduction of all expenses was agreed between them to be in the ratio of 60:40 per cent. It is stated that against the total outstanding dues of Rs.18,80,000.00 (Rupees Eighteen Lakhs Eighty Thousand only), the petitioner made a part payment of Rs.4,00,000.00 (Rupees Four Lakhs only) in cash and there was an outstanding balance of Rs.14,80,000.00 (Rupees Fourteen Lakhs Eighty Thousand only). Thereafter, another agreement was entered by and between the petitioner and the opposite party which was executed on 27/5/2013. The petitioner sought for further support of building materials worth of Rs.12,00,000.00 (Rupees Twelve Lakhs only) from the opposite party and admitted his liability to the tune of Rs.29,00,000.00 (Rupees Twenty Nine Lakhs only) but when the opposite party deposited the cheques issued by the petitioner in the account of the opposite party, they were dishonoured for the reason 'exceeds arrangement'. Being aggrieved, the opposite party filed the complaint petition which was registered and numbered as NI Case No.19c/2014.

(3.) The petitioner upon receipt of summons appeared before the Competent Court and the evidence of the complainant / opposite party was closed on 29/6/2016 and the case was posted for statement of the defence. On 24/5/2017 the statement of the accused/ petitioner was recorded under Sec. 313 Cr.P.C. wherein the petitioner stated that he wished to adduce evidence on his behalf and the case was posted for defense witness on 6/7/2017. The petitioner was examined-in-chief and his cross-examination was reserved on 29/8/2017. During the course of the proceedings the petitioner filed a petition being Petition No.727/2018 dtd. 13/3/2018 before the Court of Additional CJM, Dibrugarh, praying for permitting the petitioner to adduce the evidence of one Nizamuddin Ahmed, who is the engineer of Department N.F. Railway Department. The Court fixed the matter for objection and hearing of the petition on 27/3/2018. The opposite party/ complainant filed their objection on 27/3/2018 and after hearing both the parties vide order dtd. 11/4/2018 the petitioner was permitted to adduce the evidence of the said Nizamuddin Ahmed as a defence witness and directed the petitioner to take steps upon the said Nizamuddin Ahmed for his appearance to adduce evidence. The petitioner took steps for the summons on the said Nizamuddin Ahmed on 14/6/2018, 22/6/2018 and 23/8/2018 but the summons issued to the said Nizamuddin Ahmed was sent to Dhubri instead of Dhemaji and there was no record of the notice being served.