Petitioner in cheque bounce case challenged bail cancellation and arrest warrant. Court held petitioner was not a willful defaulter and granted fair opportunity to face trial, staying arrest execution while directing payment of costs.
Warrant of arrest stayed; petitioner directed to appear and deposit Rs. 2,000/- to proceed with case.
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GAHC010205202021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./719/2021
PRANATI DAS W/O SRI RAMKRISHNA DAS C/O GOBINDA DAS HOUSE NO. 5, BISHNU PATH, VIP ROAD, GUWAHATI-781006, P.S. DISPUR, DIST. KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS REP. BY THE LD. PP, ASSAM
2:SRI DWIPEN DAS @ DIPEN CHANDRA DAS S/O LATE PRAFULLA DAS R/O VILL- KULHATI P.S. HAJO PIN-781104 DIST. KAMRUP (RURAL) ASSAM
3:MRS. RUMI KASHYAP W/O SRI BHASKAR JYOTI KASHYAP R/O FATASHIL AMBARI KALI MANDIR P.S. FATASHIL AMBARI PIN-781025 DIST. KAMRUP (METRO) ASSA
Advocate for the Petitioner : MR. B BORAH
Advocate for the Respondent : PP, ASSAM
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BEFORE HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN
O R D E R
13.12.2021.
Heard the learned counsel for the petitioner. Also heard the learned counsel for the State/respondent No.1.
The present petition has been preferred challenging the impugned order dated 16.11.2021, passed by the learned SDJM (S) No.1, Kamrup (M) at Guwahati, in C.R. Case No.2763/2017, whereby the learned trial Court issued NBWA against her.
Referring to the documents annexed, it has been stated that the present petitioner herein is facing the trial before the said Court, in connection with a case under Section 138 of the N.I. Act and she was otherwise regular in appearance before the learned trial Court and by the impugned order, the learned trial Court, holding that the petitioner has not paid the cost of Rs.2,000/-, as imposed by the Court and also the PW.1 has not been examined since 17.06.2019, despite numerous opportunities and her engaged counsel has also did not crossexamine the PW.1, passed by the impugned order, cancelling the bail, fixing 11.01.2022.
The learned counsel for the petitioner has pointed out to fact that the said PW.1 has already been examined as on 18.12.2019 vide Annexure-III (page-51). Thereby it is submitted that the observation made by the learned trial Court that the PW.1 is not cross-examined, is not proper.
On the next, it is also submitted that for the absence of the petitioner, a petition was filed and she was also represented by the learned engaged counsel, but as the engaged counsel did not turn up before the Court to press the petition, the learned trial Court has finally rejected the petition and has issued the warrant of arrest. It is further submitted that the petitioner is not a willful defaulter in the said case and she is still ready to face the trial, but cancellation of bail has caused serious prejudice to the petitioner.
Pursuant to the submission and going through the documents annexed, it reflects that cross-
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examination of the PW.1 has already been made and in the subsequent period due to Covid19, no any witnesses was examined. On the other hand, the petitioner herein is not a willful defaulter and had the engaged counsel pressed the petition properly, the order could have been restricted.
Taking note of all the above, this Court is of the opinion that the petitioner should be given a fair opportunity to face the trial and rejection of the bail on the ground that has been mentioned would not be justified in the given backdrop of the case.
I have heard the submission of learned Addl. P.P., Assam, in this regard, who has acceded to the submission that has been made.
Considering all entirety, the present petition stands disposed of at the motion stage itself with direction to the petitioner to appear before the trial Court, on the date so fixed and the learned trial Court will consider the prayer of the petitioner to allow her to remain on previous bail. The petitioner is also directed to deposit the cost of Rs.2,000/-, as imposed by the learned trial Court and to proceed with the case accordingly.
Till then the execution of the warrant of arrest is hereby stayed.
With the above direction, the petition stands disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the cancellation of bail was justified given the petitioner obtained a fair opportunity to cross-examine the witness.
Whether the petitioner was a willful defaulter liable for arrest.
2 provisions across 1 enactments
PRANATI DAS
THE STATE OF ASSAM
SRI DWIPEN DAS
MRS. RUMI KASHYAP
RUMI KUMARI PHUKAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
