BIJOY SANKAR PAUL Vs. SUVADIP BHATTACHARJEE
LAWS(TRIP)-2021-2-39
HIGH COURT TRIPURA
Decided on February 12,2021

Bijoy Sankar Paul Appellant
VERSUS
Suvadip Bhattacharjee Respondents

JUDGEMENT

Akil Kureshi,J. - (1.) The petitioner has challenged an order dated 21.01.2019 passed by learned Addl. Chief Judicial Magistrate, West Tripura in Criminal case No.160 of 2016.
(2.) Brief facts are as under: The respondent No.1 had executed an agreement to sale land to the petitioner on 24.09.2014. Total sale consideration was fixed at Rs.23,35,000/- of which according to the petitioner Rs.3,00,000/- was paid upfront to the respondent No.1. However, the petitioner later on came to know that out of the total area of the land in question, a portion of land measuring 349 Sq.ft. was khas land. The respondent No.1 according to the petitioner had made a false statement and induced him to enter into the said deed of agreement. With these allegations, the petitioner filed a private complaint on 21.3.2016 before the concerned Magisterial Court against the respondent No.1 for offence punishable under Section 420 of IPC. The learned Magistrate recorded the depositions of witnesses including that of the petitioner. Eventually the case was kept for oral arguments. At that stage, the petitioner moved an application dated 20.01.2019 requesting the Court to recall himself as a witness for re-examination in exercise of powers under Section 311 of the Criminal Procedure Code. This was on the ground that at the time of his examination before the Court he had mistakenly not stated that he had agreed to enter into the agreement with the accused after perusing the Khatian as the accused was resident of the same village and considering him as his younger brother he had trusted the entries in the Khatian. He had, therefore, signed the agreement without measuring the land. Further, the complainant pointed out that he has also filed a civil suit for breach of contract in which it has been stated that the complainant had gone to Bangalore on 16.10.2014 for his treatment and returned only on 27.10.2014. To establish this aspect, he wanted to produce the boarding pass showing his journey from Agartala to Bangalore and return.
(3.) This application was rejected by the learned Magistrate by impugned order dated 21.01.2019 making following observations: 'In the instant case I have perused the complaint petition and the evidence on record very carefully and it seems that the Complainant side has been given full opportunity to lead their evidence and now after the cross-examination of the complainant and his witnesses it would not be prudent to give to the Complainant another chance to include the above averments and documents on record as a matter of course as the averments sought to be introduced and the documents sought to be introduced can not be said to be essential for the just decision of the case. During examination of the complainant if the Complainant fails to depose some important averments or introduce and exhibit his documents due to inadvertence, ignorance, indifference or latches of any kind he can not simply wave the magic wand of section 311 of Cr.P.C. as a matter of right to set his case in order unless such recall and re-examination is needed to go into the root of the matter for the just decision of the case which is not so in the present case. For the reasons indicated above the prayer of the Complainant U/S 311 of Cr.P.C. is rejected.' ;


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