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Rajasthan High Court · body

2005 DIGILAW 2263 (RAJ)

Govind Ram Meel v. State of Rajasthan

2005-08-26

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-These eight criminal miscellaneous petitions under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”) are directed against the Order dated 19.07.2005 passed by the Additional Chief Judicial Magistrate No. 3, Jodhpur (for short, “the trial Court” hereinafter) in Criminal Cases No. 6/2005, 7/2005, 9/2005, 10/2005, 8/2005, 11/2005, 12/2005 and 13/2005, M/s. Apollo Tyres Ltd. vs. Shri Govind Ram Meel, respectively, whereby the applications filed by the accused-petitioner(s) under Section 311 of the Code were dismissed. Since all these miscellaneous petitions arise out of the common order on the applications filed by the petitioner under Section 311 of the Code and between the same parties, therefore, they are being heard and decided by this common order. For convenience, the facts of S.B. Criminal Misc. Petition No. 911/2005 are taken as the leading case. 2. The facts and circumstances giving rise to the instant criminal miscellaneous petition are that respondent No. 2 M/s. Apollo Tyres Limited filed a complaint against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), inter alia, alleging therein that cheques issued by the petitioner, when presented to the State Bank of India, Shastri Nagar Branch, Jodhpur, where the complainant had bank account, the same were dishonoured, on which the petitioners bank issued a memorandum dated 10.09.1999 with the remarks that cheques No. 1 to 18 were dishonoured on account of “stop payment” and cheques No. 19 to 24 were dishonoured for “want of sufficient fund.” A statutory notice was served on the petitioner. The petitioner failed to pay the cheques amount within the stipulated period of notice and, therefore, respondent No. 2 filed a complaint under Section 138 of the Act. PW. 1 Shiv Kumar Purohit, District Commercial Incharge of respondent No. 2 appeared and made statement before the trial Court. The trail Court took cognizance of the offence against the petitioner and issued process. Before the trial Court, the complaint was filed on 11.1999. On 111.2002, the complainant produced its witness PW. 1 Shiv Kumar Purohit and the trial Court recorded his statement. He was subjected to lengthy cross-examination by the Counsel representing the petitioner. Thereafter the statement of the petitioner under Section 313 of the Code was recorded on 012.2002. The petitioner himself appeared as DW. 1 and his statement was recorded on 21.03.2003. 1 Shiv Kumar Purohit and the trial Court recorded his statement. He was subjected to lengthy cross-examination by the Counsel representing the petitioner. Thereafter the statement of the petitioner under Section 313 of the Code was recorded on 012.2002. The petitioner himself appeared as DW. 1 and his statement was recorded on 21.03.2003. The statements of petitioners other witnesses DW. 2 Rameshwar Chaudhary alias Pappu and DW. 3 Sudhir Sen were recorded by the trial Court on 20.02.2004. The trial Court heard the final arguments of the case on 21.08.2004 and the matter was posted for the Judgment on 04.09.2004. However, on 04.09.2004, the Judgment could not be delivered on account of Advocates being on strike. The matter was posted to various dates for additional arguments at the request of the petitioner. Ultimately, the cases were transferred from one Court to another on 11.01.2005. On 27.04.2005, the petitioner filed an application under Section 311 of the Code seeking to recall PW. 1 Shiv Kumar Purohit on the ground that he is to be cross-examined with regard to blank cheque-book of the petitioner kept with the respondent No. 2, as also to produce certain cheques which contain the rubber stamp of petitioners firm M/s. Chaudhary Tyres but have not been signed by the petitioner. The trial Court, by an elaborate and well-reasoned order, dismissed the application filed by the petitioner, against which the petitioner has filed the instant criminal miscellaneous petitions. 3. I have heard learned Counsel for the petitioner at length and carefully gone through the complaint, the statement of PW. 1 Shiv Kumar Purhoit. Learned Counsel for the petitioner has also shown me the blank cheques which are available with the petitioner containing the rubber stamp of M/s. Chaudhary Tyres but not signed by the petitioner. Many of the cheques bear only various dates and the amount in figure, however, no amount in words, as also in whose favour the cheques proposed to be issues, were mentioned. 4. It is contended by the learned Counsel for the petitioner that PW. 1 Shiv Kumar Purohit is required to be cross-examined with regard to the fact that the cheque book of the petitioner was kept with the respondent No. 2 firm as a security and it was PW. 1 Shiv Kumar Purohit who filled-up the cheques and presented to the bank. 5. I have carefully gone through the statement of PW. 1 Shiv Kumar Purohit is required to be cross-examined with regard to the fact that the cheque book of the petitioner was kept with the respondent No. 2 firm as a security and it was PW. 1 Shiv Kumar Purohit who filled-up the cheques and presented to the bank. 5. I have carefully gone through the statement of PW. 1 Shiv Kumar Purohit recorded by the trial Court on 111.2002. He was subjected to lengthy cross-examination, wherein a specific question was put to him that the complete cheque-book of the petitioner was with him; however, the witness categorically denied this fact. This question was repeatedly put to him and a specific answer has already been given by him. So far as filling-up the cheques by him is concerned, this question too was put to the witness PW. 1 Shiv Kumar Purohit and he categorically denied that the cheques were filled-up by him, on the contrary he stated that the cheques bear the signatures of the petitioner. The petitioner has not denied his signatures over the cheques. Section 20 of the Act provides that where one person signs or delivers to another a paper stamps in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. Thus, in view of the provision of Section 20 of the Act, as the petitioner has not denied his signatures over the cheques, a presumption can be raised against him. 6. So far as production of the cheques in possession of the petitioner himself is concerned, PW. 1 Shiv Kumar Purohit has nothing to do with those cheques and, therefore, the request for recalling PW. 6. So far as production of the cheques in possession of the petitioner himself is concerned, PW. 1 Shiv Kumar Purohit has nothing to do with those cheques and, therefore, the request for recalling PW. 1 Shiv Kumar Purohit for further cross-examination in this regard cannot be said to be a bona fide. The matter is pending since November 1999 and has been adjourned on various occasions at the request of the petitioner. The trial Court noticed that the application filed by the petitioner is nothing but a device to prolong the litigation for one or another reason. 7. Learned Counsel for the petitioner has relied on two decisions of the Honble Supreme Court in Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 and Rajendra Prasad vs. Narcotic Cell through its Officer-in-charge, Delhi AIR 1999 SC 2292 . In Jamatraj Kewalji Govanis case (Supra), The Honble Apex Court, while considering the provision of Section 540 of the Old CrPC (corresponding to Section 311 of the Code), held that Section 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word may in the first part and of the word shall in the second firmly establishes this difference. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. 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 action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time. 8. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time. 8. In Rajendra Prasads case (Supra), while considering the provision of Section 311 of the Code, the Honble Apex Court held that criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. It was further held by Their Lordships that conventional concept is that Court should not permit lacuna in prosecution evidence to be filled up. But, then what is meant by lacuna in a prosecution case has to be understood before deciding the case. A lacuna in prosecution is not to be equated with the fall out of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage to err is human is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 9. In the instant case, it is not the case of the petitioner that on the relevant date, the alleged facts of cheque-book being with the respondent No. 2 was not in his knowledge. From the perusal of the statement of PW. 1 Shiv Kumar Purohit, it appears that when PW. 1 was cross-examined, this fact was very much in the knowledge of the petitioner and, therefore, the petitioner has already cross-examined PW. 1 in this regard. So far as blank cheques are concerned which the petitioner proposes to produce from his own custody, it cannot be said that the petitioner was not in possession of those cheques when he cross-examined PW. 1 Shiv Kumar Purohit. Even while he himself appears as defence witness and produced two other defence witnesses, the blank cheques of his own cheque-book were supposed to be with him. PW. 1 Shiv Kumar Purohit has categorically denied, when he was asked the question in cross-examination, that the blank cheque-book was with the respondent firm. The petitioner came with the case that he managed to get the remaining cheques from the respondent firm but he has not disclosed the source, date and the circumstances in which he managed to get the blank cheques of his own cheque-book from the respondent firm. None of the cheques he proposed to produce, is signed by the petitioner and, therefore, it cannot be said that the cheques in possession of the petitioner were not in his possession when he himself appeared as a witness or when he cross-examined PW. 1 Shiv Kumar Purohit. The factual-matrix of the case clearly indicates that the matter is pending since 1999 and for one reason or the another, it has been lingered on, though the stage of recalling or re-examining any witness is at any stage of trial or inquiry of the case. 10. 1 Shiv Kumar Purohit. The factual-matrix of the case clearly indicates that the matter is pending since 1999 and for one reason or the another, it has been lingered on, though the stage of recalling or re-examining any witness is at any stage of trial or inquiry of the case. 10. The decisions of the Honble Apex Court relied on by the learned Counsel for the petitioner turn on their own facts and are of no help to the petitioner. There is no quarrel with the proposition laid down by the Honble Supreme Court that at any stage of inquiry or trial, the Court is empowered to call or recall any witness and examine; though the first part of Section 311 of the Code is discretionary, but the discretion has to be exercised judiciously. So far as latter part of Section 311 of the Code is concerned, if the Court comes to the conclusion that examination or re-examination of a witness or his evidence appears to it to be essential for just decision of the case, the Court is under an obligation to call or summon and examine or recall and re-examine any witness whose evidence appears to it to be essential for the just decision of the case. The latter part of Section 311 of the Code is mandatory but in the instant case, the trial Court was of the opinion that recalling of PW . 1 Shiv Kumar Purohit and re-examining him is not at all essential for just decision of the case. Learned Counsel appearing for the petitioner has failed to show as to how the re-examination or further cross-examination of PW . 1 Shiv Kumar Purohit is essential for the just decision of the case. In the circumstances, therefore, in my view the trial Court was justified in dismissing the application filed by the petitioner. In this view of the matter, I do not find any error, illegality or perversity in the order(s) impugned. It cannot be said that the impugned order would result in manifest injustice or abuse of process of any Court. The extraordinary power under Section 482 of the Code are to be exercised sparingly and cautiously to prevent miscarriage of justice or when in would tantamount to abuse of the process of the Court. It cannot be said that the impugned order would result in manifest injustice or abuse of process of any Court. The extraordinary power under Section 482 of the Code are to be exercised sparingly and cautiously to prevent miscarriage of justice or when in would tantamount to abuse of the process of the Court. The cases in hand cannot be said to be of that nature where the impugned order can be said to have resulted in manifest injustice or abuse of process of any Court. 11. Consequently, I do not find any merit in these criminal miscellaneous petitions and the same are dismissed accordingly. The stay petitions also stand dismissed.