AMBALAL RANCHHODLAL PATEL v. BHIKHABHAI PUNJABHAI — 1984 DIGILAW 282 (GUJ)

M. B. SHAH, J. ( 1 ) A criminal complaint was filed by the Secretary of Society called Lamba Seva Sahkari Mandli Ltd. against the petitioner who was serving as a Clerk in the said Society contending that the petitioner has misappropiated an amount of Rs. 19 296 P. as there was shortage of stock for an amount of Rs. 14 907 and cash balance for sale of the goods worth Rs. 4389 P. was not deposited by him with the said Society. The said complaint was sent for investigation under sec. 156 (3) of the Criminal Procedure Code by the learned Magistrate. The investigating officer thereafter submitted a chargesheet against the petitioner. After examining certain witnesses the prosecution declared that it does not want into examine any more witnesses and its evidence be treated as having been closed. On 30/05/1984 the petitioner filed an application Ex. 182 before the Court contending that persons who had purchased the goods from the Society during the period between 9-10-80 and 26 be examined as Court witnesses to do complete justice between the parties. It was the case of the petitioner that he was only acting as a servant of the Society as a stopgap arrangement after his resignation. He was merely preparing bills at evening time at the instance of the complainant and not collecting the money. He had not received any amount represented by the disputed bills. He submitted that persons named in the said bills who had purchased the goods from Society were the relevant and material witnesses and in the interest of justice they may be examined as Court witnesses for arriving at just decision in the case. ( 2 ) AFTER hearing both the parties the Chief Judicial Magistrate Narol by his judgment and order dated 21/06/1984 allowed the said application. He arrived at the conclusion that in the case copies of the bills are produced The bills are also proved. He held that for deciding justly whether the petitioner had received the sale amount from the witnesses or not it would be necessary in the interest of justice to examine the said witnesses. He considered the fact that the petitioners defence was that he had not received the said amount. He held that for deciding justly whether the petitioner had received the sale amount from the witnesses or not it would be necessary in the interest of justice to examine the said witnesses. He considered the fact that the petitioners defence was that he had not received the said amount. He further held that as the case pertains to the Co-operative Society merely on the basis of preparation of bills by the petitioner it should not be held that the case against the petitioner was proved and that for proving the case it was necessary to examine the said witnesses. While arriving at the said conclusion he had taken into consideration the complainants case and the defence version and had granted the application. He further held that for having fair trial to the prosecution as well as to the defence it was necessary to examine the witnesses. ( 3 ) AGAINST the said judgment and order the original informant preferred Criminal Revision Application No. 512/84 before the Sessions Judge Ahmedabad (Rural) at Narol. The learned Sessions Judge allowed the said revision application by the judgment and order dated 18-8-1984. He held that the learned Magistrate had not given reasons why the said witnesses were required to be examined and the jurisdiction under section 311 of the Criminal Procedure Code can be exercised only in those cases where it is necessary for just decision of the case to examine the witnesses. He held that the order passed by the learned Magistrate was not judicial as no reasons were given by him. He further held that the trial Court was ignorant about the Courts power under section 311 of the Criminal Procedure Code. ( 4 ) BEING aggrieved and dissatisfied by the said judgment and order the original accused-petitioner has filed this revision application. ( 5 ) THE learned advocate for the petitioner vehemently submitted as under: (1) The order passed by the learned Sessions Judge is on the face of it illegal because the learned Magistrate has exercised his discretionary jurisdiction under sec. 311 of the Criminal Procedure Code after arriving at the conclusion that it was necessary in the interest of justice to examine the witnesses or for deciding the case justly and that he has given reasons for the said conclusion which are not considered by the learned Sessions Judge. 311 of the Criminal Procedure Code after arriving at the conclusion that it was necessary in the interest of justice to examine the witnesses or for deciding the case justly and that he has given reasons for the said conclusion which are not considered by the learned Sessions Judge. (2) As the order passed by the learned Magistrate was an interlocutory order the Sessions Court had no jurisdiction to revive it under sec. 397 of the Criminal Procedure Code. The State which was in charge of the prosecution has not field any revision application against the judgment and order passed by the trial Court but with some oblique motive the Secretary who has filed the complaint had filed the aforesaid revision application and therefore the revision application before the learned Sessions Judge at his instance was not maintainable. ( 6 ) IT is an admitted fact that the charge against the petitioner is divided in two parts. One with regard to the shortage of stock worth Rs. 14 907 and another charge is for misappropriation of an amount of Rs. 4389-92 P. for the balance of cash for sale of goods belonging to the Society for which bills were prepared by the petitioner accused and it is alleged that the said amount is no deposited by him with the Society. With regard to the second part of the charge it is the defence version that he had merely prepared the said bills at the instance of the complainant who is a Secretary of the Society in the office at evening time. He had not received the cash amount for the alleged bills which are produced on the record. Therefore looking to the controversy between the parties whether the petitioner-accused had received the said amount or not it would be absolutely necessary to examine the said witnesses. The petitioner admits that he had prepared the bills. The dispute between the complainant and the accused is narrow and it centers round whether the petitioner had received the said cash amount as contended by the prosecution or whether he had not received the said amount as contended by him. Therefore for deciding the said controversy between the parties it would be absolutely necessary to examine those persons who had purchased the goods from the Society. Those would be the best witnesses because they can say whether amount was paid to petitioner or not. Therefore for deciding the said controversy between the parties it would be absolutely necessary to examine those persons who had purchased the goods from the Society. Those would be the best witnesses because they can say whether amount was paid to petitioner or not. The learned Magistrate in his judgment and order has in terms stated that for deciding the case justly between the parties it was necessary to examine those persons. He had in terms stated that merely because the petitioner had prepared the bills it cannot be presumed that he must have received the amount from the customers. It seems that the learned Sessions Judge has not gone through the entire judgment. If these purchasers are examined as witnesses then they would throw light on the controversy between the parties. However the learned advocate for the opponent No. 1 vehemently contended that by examining these persons as witnesses the prosecution would suffer and that the defence is at liberty to examine them as defence witnesses. In my view the said contention was rightly negatived by the trial Court. In each and every case it can be contended by the parties that the witnesses can he either examined by the prosecution or by the defence and that would make the power of the Court under section 311 nugatory. In the case of Ramanlal Madhavlal v. State 13 G. L. R. 914 while negativing the similar contention and while considering the provisions of section 540 of the Criminal Procedure Code (old) the Court has held as under:-"whether in a given case the Court has exercised powers under sec. 540 correctly or otherwise is a matter which can be examined by the superior court. The question is whether there is any power in the court or not and not whether as property exercised or not. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Therefore this decision will not help Mr. Majmudar. I may however also point out that it is no answer to the problem that a witness sin respect of whom a suggestion is made that he should be examined as a court witness should have been examined as a defence witness. . . . . . . . . . . Therefore this decision will not help Mr. Majmudar. I may however also point out that it is no answer to the problem that a witness sin respect of whom a suggestion is made that he should be examined as a court witness should have been examined as a defence witness. Whenever attention of the court is drawn to a fact that the evidence of certain witness is essential to the just decision of the case it can always be answered by saying that witness can be examined as a prosecution witness or as a defence witness. That would render sec. 540 entirely infructuous". Therefore the contention of the learned advocate for the opponent No. 1 that defence could have examined the said witnesses as defence witnesses is no answer. If the Court arrives at the conclusion that the evidence of witnesses appears to it to be essential to the just decision of the case. the Court has ample jurisdiction to summon those witnesses. In the present case by no stretch of Imagination that it can be said that the examination of the witnesses stated in the application would not be in any way helpful for arriving at a just decision of the matter. The petitioner has only filed an application to examine those persons whose names are mentioned in the bills and that there is an allegation that the amount received by him as per the said bills is not deposited with the Co-operative Society. Therefore to decide whether the petitioner had received the said amount or not it would be essential to examine those persons. ( 7 ) THE learned advocate for the opponent No. 1 relied upon the decision of the Supreme Court in the case of Jumatraj v. State of Maharashtra A. I. R. 1963 Supreme Court 175 wherein the Supreme Court has considered the ambit and scope of section 540 of the Criminal Procedure Code (old ). In my view the said decision in no wily helps the contention of the opponent No. 1. In paragraph 10 the Supreme Court has in terms held that sec. 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. It further held that power under sec. 540 is divided in two parts. In paragraph 10 the Supreme Court has in terms held that sec. 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. It further held that power under sec. 540 is divided in two parts. The first part gives a discretionary power but the latter part is mandatory. Under the first part which is permissive the court may act in one of three ways: (a) summon any person as a witness (b) examine any person present in court although not summoned and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the court to act in these three ways or any one of them if the just decision of the case demands. the Court has further held as under:-"it is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The attention may equally benefit the prosecution". Further in the case of State of West Bengal v. Tulsidas reported in 1964 (1) Cri. L. J. 443 while considering the scope and ambit of sec. 540 of the Criminal Procedure Code (old) the Court has held that sec. 540 gives wide powers to the Court to examine a person as Court witness if it is essential to the just decision of the case. "it would be worthwhile to quote the following observations: It would be noticed that this section confers on Criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case it is its duty to take such evidence. The exercise of the power conferred by sec. 540 is conditioned by the requirement that such exercise would be entitled to the just decision of the case. That being so it is difficult to appreciate the argument that the scheme of sec. 207a excludes the application of sec. 540 to the proceedings governed by the former section. It is true that sec. 540 is conditioned by the requirement that such exercise would be entitled to the just decision of the case. That being so it is difficult to appreciate the argument that the scheme of sec. 207a excludes the application of sec. 540 to the proceedings governed by the former section. It is true that sec. 207a does not give an accused person a right to read evidence in defence and so he would not be entitled to make an application in that behalf but that is very different from saying that in proceedings under sec. 207a the Magistrate has no jurisdiction to examine a witness by exercising his powers under sec. 540. The denial to the accused person of the right to lead evidence in defence has no material bearing on the question as to whether the Magistrate can exercise his power under sec. 540". ( 8 ) IN the present case no reasons are assigned why the prosecution does not want to examine those persons who had purchased the goods from the Society during the relevant period. It may be that the prosecution is interested in not examining the said witnesses for the reasons best known to it. To remove doubt or ambiguity the Court is entitled to examine those persons In such a case it is always open to the defence to examine such witnesses as their witnesses as also the Court can call such witnesses in the box in the interest of justice under section 311 of the Criminal Procedure Code. Therefore. to bring out the truth and to come to a proper and just conclusion if the trial Court considers that examination of certain witnesses is essentials then it cannot be said that the discretionary order passed by the learned Magistrate requires any interference in the revision application. As I have arrived at the conclusion that the order passed by the learned Magistrate was a speaking order giving reasons why it was necessary to examine witnesses and was passed after considering that as just and necessary in the interest of justice to examine raised by the learned advocate for the petitioner that the order passed by the learned Magistrate was an interlocutory order and therefore under sec. 397 of the Criminal Procedure Code the Sessions Judge had no jurisdiction to interfere with it and that opponent No. 1 who was merely an informant had no right to file a revision application. ( 9 ) IN the result the revision application is allowed. The judgment and order passed by the learned Sessions Judge in Criminal Revision Application No. 51/84 on 18-8-84 is quashed and set aside and the judgment and order passed by the Chief Judicial Magistrate. Ahmedabad (Rural) Narol in Criminal Case No. 1735/81 on 21-6-84 is restored. Rule absolute. Revision Application allowed. .