Page No.# 1/8 GAHC010076932024 2025:GAU-AS:5323 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./431/2024 RABENDRA DAS S/O LATE AKAN CH. DAS, RESIDENT OF AMBARI HATI BARPETA, PO AND DIST BARPETA ASSAM VERSUS UDAY CHANDRA MAZUMDAR AND ANR S/O LATE NARAYAN MAZUMDAR, RESIDENT OF BAMUNBARI, DIST BARPETA, ASSAM 2:THE STATE OF ASSAM REPRESENTED BY PP ASSA Advocate for the Petitioner : MR. U J SAIKIA, MS M DAS Advocate for the Respondent : PP, ASSAM, MR. J DEKA (R-1) BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER 30/04/2025 This is an application under Section 397 r/w Section 482 of the CrPC praying for setting aside the Order dated 24.01.2024 and for recalling the Non-Bailable Warrant of arrest (NBWA for short) issued against the petitioner by order dated 09.02.2024 in N.I. Case No. 47/2016 by the Additional Chief Magistrate, Page No.# 2/8 Barpeta. 2. I have heard Mr. U. J. Saikia, learned counsel for the petitioner. It is stated that the OP No. 1 had filed a complaint Case under Section 138 of the N.I. Act before the Chief Judicial Magistrate, Barpeta, stating that the petitioner had taken an amount of Rupees 5 Lakh from the O.P 1 with a promise to return the same within the month of May, 2016. In order to repay the debt, the petitioner had issued him cheque of Rupees 5 Lakh dated 29.05.2016. As the cheque got dishonoured and the petitioner had not repaid the money on demand, the OP No. 1 had filed the case. 3. It is also stated that vide Judgment and Order dated 31.05.2017, the Additional Chief Judicial Magistrate, Barpeta, convicted the petitioner and impose SI of 3 Months and a sentence of fine of Rupees 6,50,000/- was also imposed on the petitioner. And a default clause to the effect that, he shall undergo SI for 1 Month. And the fine amount when recovered shall be awarded to the OP No. 1 as compensation under Section 357 (1) (b) of CrPC. 4. The petitioner also states that an appeal was preferred against the judgment dated 31.05.2017 before the Session Court, Barpeta, the Session Court affirmed the Judgment and Order dated 31.05.2017. Against the Order of the Sessions Court, the petitioner had filed Criminal Petition before this Court, but the same was also dismissed. 5. Accordingly, warrant of arrest was issued against the petitioner by the trial court and on 20.09.2023 the petitioner was produced before the Court of Additional Chief Judicial Magistrate, Barpeta and sent to Judicial custody to Page No.# 3/8 serve the sentence, as per the Judgment dated 31.05.2017. 6. The petitioner states that he was in judicial custody for 4 months and therefore, he had undergone SI for 3 months and another SI for 1 month for default in paying the fine. And he was finally released from the District Jail, Barpeta on 19.01.2024. 7. It is submitted that subsequently the OP No. 1 made an application before the Additional Chief Judicial Magistrate, Barpeta for issuing of NBWA against the petitioner, and on the basis of which the Additional Chief Judicial Magistrate, Barpeta issued notice to the petitioner vide Order dated 24.01.2024 to appear before the said Court on 09.02.2024 to undergo SI for 1 month as the petitioner has defaulted in paying the fine amount. As the notice could not be served upon the petitioner, another notice was issued fixing 18.03.2024 for his appearance. 8. The petitioner further states that his engaged counsel appeared before the court below on 18.03.2024, and sought time for appearance of the petitioner; but the prayer was rejected and NBWA was issued against the petitioner by order dated 18.03.2024. Being aggrieved by the impugned notice dated 24.01.2024 and NBWA dated 18.03.2024, the present petitioner is before this Court. 9. It is the submission of the learned counsel for the petitioner that the petitioner has already undergone the sentence of 3 months and another 1 month as he failed to pay the fine. And therefore, the impugned orders are illegal and liable to be set aside and quashed. It is also submitted that the petitioner’s counsel had appeared before the learned court below on Page No.# 4/8 18.03.2024 and prayed for time for appearance of the petitioner. However, the said prayer was rejected and NBWA was issued against the petitioner. The petitioner herein, therefore, prays that the notice dated 24.01.2024 and the NBWA dated 18.03.2024 may be quashed and set aside. 10.Learned counsel, Mr. J. Deka appears for the respondent No. 1 and has drawn the attention of this Court to an order dated 18.04.2024 passed by the Additional Chief Judicial Magistrate, Barpeta by which the NBWA has already been recalled and therefore, it is stated that this petitioner has become infructuous and nothing remains to be adjudicated. However, learned counsel for the respondent No. 1 states that serving of sentence in default of payment of fine does not exempt the petitioner from paying the fine as sentenced. And therefore, the petitioner has to appear before the Trial Court and pay the fine which he was sentenced to pay or he has to face proceeding as per law in default of payment of the same. 11. Learned counsel for the respondent No. 1 in order to support his contention has relied on the case of Kumaran Versus State of Kerala and Anr reported in (2017) 7SCC 471; wherein, the hon’ble Supreme Court has held that in a case under NI Act when a jail sentence prescribed is undergone, the compensation is still recoverable. The apex court held that despite the fact that a default sentence was undergone, yet under the provisions of the CrPC, compensation had to be recovered. 12. Learned counsel further submits that the petitioner herein has not approached this Court with clean hands and has suppressed materials facts. He has brought to the notice of this Court that there was another Criminal Revision Page No.# 5/8 filed by the petitioner before this Court being Crl. Rev.P. 130/2018 challenging the issuance of another NBWA against him, and this Court vide Order 29.11.2018 in Crl. Rev. P. 130/2018 admitted the petition subject to payment of Rupees 2 Lakh by the petitioner before the Registry of this Court within 30 days .However, the same was not paid and the petitioner also failed to appear before this Court on the date fixed and therefore, the said petition was dismissed for default. 13. Thereafter, the petitioner again filed another I.A. being registered as I.A. (Crl.) 449/2019 praying for suspension of the NBWA issued against him. This Court vide order dated 04/06/2019 in I.A. 449/2019 suspended the execution of the NBWA subject to the condition that before the next date fixed in the case, the applicant would deposit an amount of Rupees 2 Lakh before the court of learned Additional Chief Judicial Magistrate, Barpeta by means of demand draft drawn in favour of the complainant. Learned counsel for the respondent No. 1 states that this amount was also never deposited by the petitioner. 14.The counsel for the respondent No. 1 states that the petitioner also filed another I.A. Crl Being I.A. (Crl.) 240/2019 by which he prayed that the Crl. Rev. P. 130/2018 may be restored and also that the NBWA issued against him by the Trial Court may be stayed. This Court vide Order dated 01.08.2019 in I.A. Crl 240/2019 dismissed the I.A. for non prosecution in view of the fact that the court had directed the petitioner to deposit a sum of Rupees 2 Lakh before the Court of Additional Chief Judicial Magistrate, Barpeta by demand draft in favour of the complainant which was not complied. This Court stated that on the next date on 18.06.2019, the petitioner again took time to comply with the Court’s Orders and to deposit the amount as directed. This Court again granted further Page No.# 6/8 time but on the subsequent dates i.e., 26.06.2019, 15.07.2019 and again on 01.08.2019 the petitioner was not present which indicated his inability/inaction to comply with the order. And therefore the I.A was dismissed and interim order was vacated. 15.The counsel for the respondent No.1 has relied on the case of SP Chengalvaraya Naidu (dead) by LRS Versus Jagannath (dead) by LRS and others reported in (1994) 1SCC1 in which the hon’ble Supreme Court has observed that the person who comes to the court must come with clean hands. The litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds vital documents in order to gain advantage of the other side then he would be guilty of playing fraud on the Court as well as the on the OPs. Learned counsel for the respondent No. 1 accordingly, submits that the petitioner has committed fraud by suppressing materials fact and by suppressing the previous orders of this Court. And he has therefore prayed that costs may be imposed on the present petitioner and the present petition may be dismissed. Learned counsel for the respondent No. 1 also categorically submits that not a single paisa has been paid till date by the petitioner. 16. Learned Additional Public Prosecutor, Ms. S. Borah appears for the State respondent and she has adopted the submission of the counsel for the respondent No. 1 and has further prayed that a direction may be given to the accused person to appear before the learned Trial Court and to face proceeding therein as the present petition is now infructuous. 17. I have considered the opposing submission of the learned counsels and Page No.# 7/8 perused the records available before this Court. It is seen that the present petitioner has already undergone the 3 Months SI as sentenced by the learned Trial Court. And he has also undergone the 1 Month SI in default. However, he has not paid the fine amount of Rupees 6,50,000/- which was to be awarded to the complainant as compensations under Section 357(1) (b) of CrPC. 18. This court has also noted that vide order dated 18.04.2024 the NBWA issued against the petitioner has already been recalled by the Additional Chief Judicial Magistrate, Barpeta. In the case of Kumaran Versus State of Kerala and Another. (Supra), the hon’ble Supreme Court has clearly stated that the laid down position of law is clear that even though a default sentence has been undergone, yet compensation would be recoverable in the manner provided under Section 421(1) CrPC. This Court is therefore of the view that the learned Trial Court has not committed any error or illegality in issuing notice to the petitioner for his appearance. 19.This Court has also taken note of the fact that the judgment by which the petitioner was convicted and sentenced is of 31.05.2017 and till date the petitioner has not paid a single paisa towards recovery of the fine amount of Rupees 6,50,000/-. It is now 8 years since the date of the judgment dated 31.05.2017. In fact the petitioner has been delaying the matter by filing petition after petition before this Court and is also evading proceedings before the leaned Trial Court. Even in the present petition, the petitioner has suppressed materials facts about the filing of Crl.Pet 130/2018, I.A(crl) 449/2019 and I.A. (Crl) 240/2019. Without disclosing all these facts and without disclosing the fact that he has not paid any amount towards the fine imposed on him, he has filed this present petition praying for quashing of the notice and the NBWA issued Page No.# 8/8 against him by the learned Trial Court. 20. In view of the observations made hereinabove, the petition is dismissed, being devoid of merit and on being infructuous. The interim order is vacated. 21.The petitioner shall appear before the learned Additional Chief Judicial Magistrate, Barpeta within 3(three) weeks from today and face the proceedings as per law for default of payment of the fine amount. The petition is disposed of accordingly. JUDGE Comparing Assistant