Page No.# 1/7 GAHC010205542023 2025:GAU-AS:11918 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./392/2023 BABY SAHA W/O SRI BIBHSH SAHA R/O VILL- JASHODA ANAND APARTMENT, FLAT NO. 404, 4TH FLOOR, BLOCK-B, BORIPARA, NEAR MALIGAON FLYOVER, P.S. JALUKBARI P.O. PANDU DIST. KAMRUP (METRO), ASSAM, PIN-781012 VERSUS SANJOY KUMAR JAIN AND ANR S/O LATE JAI CHAND JAIN R/O BORIPARA P.O. PANDU P.S. JALUKBARI DIST. KAMRUP (METRO), ASSAM PIN-781012 2:THE STATE OF ASSAM REP. BY THE PUBLIC PROSECUTOR ASSA Advocate for the Petitioner : MD. A SAHAD, MR. M H ALI Advocate for the Respondent : PP, ASSAM, MS. P C BARNALI NAIR (R-1),MR. B K JAIN (R-1) Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date: 03.09.2025 Heard Mr. A. Sahad, learned counsel for the petitioner. Also heard Mr. B. K. Jain, learned counsel appearing for the respondent No.1 and Ms. S. H Bora, learned Additional Public Prosecutor for the State respondent. 2. This is an application filed under Section 397/401 of Cr.P.C against the impugned order dated 15.06.2023 passed in C.R .Case No. 6512c/2018 passed by the learned Judicial Magistrate, First Class, Guwahati (M), whereby allowing the opposite party’s petition to adduce or exhibit additional oral or documentary evidence by way of re-examination in the above C.R. case. 3. The brief facts of the case are that in the year 2017, the Opposite Party No.1 offered to sell a ready to move 3BHK flat bearing flat No. 404 comprising of 1360 sq.ft in the 4th floor at Block-B in the Jashoda Ananda Apartment, Boripara, Guwahati at a fixed price of Rs 51,00,000/-. On being found suitable to the petitioner, the petitioner agreed to the aforesaid proposal, and accordingly, an MoU dated 11.04.2018 was signed between the parties and the same was notarised on the same date. As per the terms and schedule mentioned in the MoU, the petitioner paid to the respondent No1 an amount of Rs. 47,00,000/- out of 51,00,000/-. 4. The dispute occurred when an amount of Rs. 4 lacs was to be paid before execution of the final sale deed. It may be worthwhile to mention herein that the aforesaid Rs. 47,00,000/- so paid by the petitioner to the respondent No. 1, includes advance payments by way of two cheques. However, the petitioner did not pay the balance consideration of money i.e. Rs. 4,00,000/-for the aforesaid flat and Page No.# 3/7 therefore, the execution of the sale deed did not happened. In the meantime, the opposite party No.1 deposited the cheques which were paid in lieu of advance payment for an amount of Rs. 20,00,000/-, the cheques were dishonored by the bank of the petitioner with the comment “stopped payment”. 5. In view of the aforesaid and being aggrieved by such non-clearance of the cheques, the opposite party No.1 after sending a statutory demand notice on 09.06.2008 and after not getting any satisfactory reply from the petitioner, the opposite party No.1, instituted a complaint before the Chief Judicial Magistrate, Kamrup (M) Guwahati which has been registered as CRP Case No. 6512c/2018. The trial before the Chief Judicial Magistrate Court went ahead and at present, at the stage of examination and cross-examination of the complainant/respondent No.1. While the trial was going on, the complainant/respondent No.1, filed an application before the Court of Sub-divisional Judicial Magistrate No.2 Kamrup (M) Guwahati under Section 311 of the Cr.P.C to bring on record the Deed of Sale executed between him and his developer, Shri Dilip Kumar Sipani, the same was allowed by the learned Sub-divisional Judicial Magistrate as no objection was made by the petitioner. While on 12.01.2022, examination and part cross-examination of the respondent No.1, was over, the respondent No.1, filed another application before the Sub-divisional Judicial Magistrate, No.2 Kamrup (M) for bringing on record the deed of agreement for sale of the flat in dispute, executed between him and his vendor i.e M/s Excellent Developers & Promoters Pvt Ltd, represented by one of its Director Shri Dilip Kumar Sipani. The prayer under this petition was objected by the petitioner, however, the learned Sub-divisional Judicial Magistrate (S), No. 2 Kamrup (M) allowed the introduction of the aforesaid agreement for sale deed dated 08.06.2012, vide its order dated 15.06.2023. Page No.# 4/7 6. Being aggrieved by the aforesaid order dated 15.06.2023 whereby the learned the Sub-divisional Judicial Magistrate (S), No. 2 Kamrup (M) allowed the introduction of the aforesaid agreement, of the petitioner, has approached this Court by assailing the impugned order dated 15.06.2023. 7. The learned counsel for the petitioner submits that though the amount of Rs. 47,00,000/- has already been paid out of the agreed amount of Rs. 51,00,000/- as mentioned in the MoU. The respondent No. 1, failed to execute the sale deed as per the terms of the aforesaid MoU. He further submits that the petitioner issued a stop payment instruction to her banker due to the fact that the sale deed was not executed as per the terms of the MoU by the respondent No.1. He also submits that due to her instruction, the bankers refused to clear the aforesaid two cheques each amounting to Rs. 10,00,000/- lacs and therefore, the respondent No.1, filed a complaint before the Sub-Divisional Magistrate, Kamrup(M), Guwahati. 8. The learned counsel for the petitioner further submits that he was never intimated about the previous ownership of the flat by the aforesaid, M/s Excellent Developers & Promoters Pvt Ltd, represented by Shri Dilip Kumari Siapni. He submits that this fact was never disclosed to her. He submits that she was never aware of any existence of any deed of agreement for sale in respect of the flat. Therefore, he submits that while trial Court was going on, the petitioner was taken aback by the prayer of introducing a new document at that stage i.e. after examination and cross- of the complainant. Therefore, he submits that the respondent No.1, in fact, is trying for introducing the deed for agreement dated 08.06.2022 only to fill up the lacunae in this case. In view of the aforesaid submissions, the learned counsel for the petitioner submits that the impugned order dated 15.06.2023, passed by the learned Sub-Divisional Judicial Magistrate, Page No.# 5/7 First Class, Guwahati is not correct and therefore, he prays the same to be set aside. 9. Per contra, Mr. B.K. Jain, learned counsel appearing for the respondent No.1, submits that the MoU dated 11.04.2018 clearly provides for the terms and conditions as well as the payment terms providing a schedule therein. He submits that the payment terms of the aforesaid MoU makes it clear that the disputed two cheques amounting to Rs. 10,00,000/- were, in fact, paid as per terms of the MoU as advance payment. He submits that there was no occasion for the respondent No.1, to issue a stop payment instruction to her banker. He further submits that those cheques were part of the payments i.e. Rs. 47,00,000/- paid by the petitioner to the respondent No.1. He also submits that the necessity to bring on record the aforesaid deed of agreement sale was due to the fact that the petitioner herself disputed the ownership of the flat by the respondent No.1. He submits that in that circumstances, the respondent No.1 felt the necessity of bringing the aforesaid document on record. Accordingly, the petition moved before the Sub-Divisional Magistrate, Kamrup(M), Guwahati and the prayer of the respondent No.1 was duly considered. In view of the aforesaid, he submits that there was nothing wrong in passing of the aforesaid order and therefore, he prays that this instant petition may be rejected. 10. This Court has heard the counsels appearing for the respective parties. 11. It is seen from the materials brought before this Court that the respondent no. 1 has made a categorical statement in his application for allowing him to be examined adducing his evidence, under Section 311 of the Cr.P.C., read with Section 145 of the NI Act, 1881, that though he has already adduced his evidence by way of evidence-in-chief, and further, adduced his additional evidence by filing an affidavit and so partly cross-examined, he could not produced the Deed of Agreement for Page No.# 6/7 sale of the concerned flat, in spite of his due diligence, as the aforesaid Deed was misplaced and can be recovered only after conclusion of his cross-examination in part. It is also seen that he made a statement that Deed of Agreement for sale of the concerned flat is relevant and vital to substantiate the dispute regarding execution and registration of the aforesaid for sale of the said flat, signed by him and erstwhile seller for proper adjudication of the case. It is seen from the impugned order dated 15.06.2023 that the learned Judicial Magistrate First Class, Kamrup (M), Guwahati, after re-consideration of the prayer so made as well as the objection raised by the petitioner in the case, passed the impugned order allowing the respondent no. 1 to bring on record the aforesaid Deed of Agreement for sale. 12. It is a settled law that recall and further recall of witnesses can be allowed in certain cases, wherein, the Court is of the opinion that the same is essential for proper adjudication of the matter and to arrive at a just decision. It is also settled that while being so, no prejudice should be caused to the other side and as such, recall and re-examination of witnesses should not be in the guise of filling up of lacuna in the case. 13. In the instant case, as revealed from the materials available before this Court that the dispute that has occurred can only be adjudicated in proper manner by bringing on record the aforesaid Deed of Agreement for sale of the concerned flat, signed between the respondent no. 1 and his erstwhile seller i.e. M/s Excellent Developers & Promoters Pvt Ltd. Though, it is settled law that power to recall is not a matter of Courts, however, discretion is given to the Court to exercise such power judiciously, to bring justice and bring the dispute to a closure, providing justice to the parties involved. 14. After considering the settled legal provisions and the materials available on Page No.# 7/7 record and the submissions made by the learned counsels for the parties, this Court is of the considered opinion that there is no infirmity in the order dated 15.06.2023, passed by the learned Judicial Magistrate First Class, Kamrup (M), Guwahati, by which, the Court allowed the respondent no. 1 to adduce or exhibit additional oral and documentary evidences by way of re-examination. 15. Accordingly, this Court is of the view tha the instant application, filed under Section 397/401 of the Cr.P.C., is bereft of any merit and hence, the application is hereby rejected and accordingly, disposed of. JUDGE Comparing Assistant