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Himachal Pradesh High Court · body

2009 DIGILAW 147 (HP)

VISHWA NARAYAN GOSWAMI v. RAM RATTAN SHARMA

2009-03-13

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J.:- The petitioner is a complainant in Complaint Case No. 95-1/2006 filed under Section 138 of the Negotiable Instruments Act. He has preferred the instant petition challenging the order passed by learned Sessions Judge in Criminal Revision Petition No.27 of 2007 decided on 2.2.2008 whereby the order of dismissal of the application under Section 311 of the Code of Criminal Procedure moved by the accused-respondent was reversed by allowing the application. 2. In brief, the facts giving rise to the present petition are that the respondent is alleged to have issued the cheque on 10.4.2006 to the tune of Rs.30,000/-, which was dishonored, thus after sending the statutory notice, the amount was not paid by the accused-respondent, as such, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act against the respondent. 3. The petitioner led his evidence and the statement of the respondent was also recorded under Section 313 of the Code of Criminal Procedure on 7.6.2007. The respondent opted to lead his defense but instead of examining any witness in defense, he moved an application on 14.9.2007 under Section 311 of the Code of Criminal Procedure read with Section 45 of the Indian Evidence Act, on the ground that the petitioner had denied in his cross-examination having sent the Post Cards Mark A & B dated 11.6.2003 and 20.6.2003 to the accused wherein there is a reference of the cheque number in question. The proof of the said letters was necessary for the just decision of the case, thus the handwriting and signatures of the petitioner were required to be taken and sent for the examination from the Handwriting Expert. This application was resisted and contested by the petitioner on the ground that no defense was produced by the accused despite taking several opportunities nor the list of DWs was filed. The application aforesaid was moved to delay the proceedings and the respondent had no right to make such a request. 4. After hearing the parties vide order dated 10.10.2007, the learned trial Magistrate declined therequest of the respondent on the ground that there was no need to call any Handwriting Expert for comparison being not material for the effective adjudication of the case. 5. 4. After hearing the parties vide order dated 10.10.2007, the learned trial Magistrate declined therequest of the respondent on the ground that there was no need to call any Handwriting Expert for comparison being not material for the effective adjudication of the case. 5. The respondent assailed the aforesaid order before the learned Sessions Judge in a revision petition which according to the petitioner herein was not maintainable being an interlocutory order, but the learned Sessions Judge over-ruled this objection and held that revision petition was maintainable as it goes to the root of the matter. Further that the rules of procedure are made only to advance justice and not to thwart it, as such, he allowed the request of the respondent subject to cost of Rupees 1000/. It is this order which has been assailed in this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure on the ground that the findings arrived by the learned Sessions Judge are in-correct, thus unsustainable. 6. Learned counsel for the petitioner argued that the learned Sessions Judge has wrongly held that the order on the application was not an interlocutory order and further that he over-looked the mandatory provisions of Section 311 of the Code of Criminal Procedure, thus the impugned order is un-sustainable. 7. Contra, learned counsel for the respondent supported the impugned order and prayed for dismissal of the petition. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the case. 9. The first question staring at the face is whether the order passed under Section 311 of the Code of Criminal Procedure by the learned trial Magistrate is an “interlocutory order” and not amenable to the revisional jurisdiction. My answer to it is in affirmative. The order passed by the court under Section 311 Cr.P.C. is an “interlocutory order” and revision against it is barred under Section 397(2) of the Code of Criminal Procedure. 10. In fact the word “interlocutory order” has not been defined in the Code. My answer to it is in affirmative. The order passed by the court under Section 311 Cr.P.C. is an “interlocutory order” and revision against it is barred under Section 397(2) of the Code of Criminal Procedure. 10. In fact the word “interlocutory order” has not been defined in the Code. However, in Amar Nath’s case [1978 SCC (Cri)10, the Supreme Court held that the word “interlocutory order” in Section 397(2) of the Code has been used in a restricted sense and not in a broad or artistic sense and it merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights of the parties but any order which substantially affects the right of the parties can not be said to be an “interlocutory order”. 11. In Madhu Limaye’s case [1980 SCC (Cri)695], a three Judge Bench of the Supreme Court held that an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an “interlocutory order”. 12. Further in Rajendra Kumar Sita Ram Pande vs. Uttam and another [1999(3), SCC 134], the apex court took note of the above preposition of law and held that the above being the position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted. 13. Yet in another case K.K. Patel vs. State of Gujarat (2000)6 SCC 195, while relying upon Rajiendra Kumar Sita Ram Pande’s case supra, held that it is well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, the feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objection would not be merely interlocutory in nature as envisaged under Section 397(2) of the Code. 14. 14. In the present case, the order passed on the application under Section 311 Cr.P.C. by the learned trial court is neither an intermediate nor a quasi-final order and further the proceedings in main case against the accused-petitioner would not culminate even on acceding to the request of the respondent, therefore the order impugned in revision petition by the accused before the learned Sessions Judge is an “interlocutory order” and was not amenable to his revisional jurisdiction. 15. The next question which arises for determination is whether the order impugned before the learned Sessions Judge disallowing the application by the learned trial Magistrate, is legally and factually sustainable. 16. In fact, Section 311 of the Code of Criminal Procedure has two parts. The first part gives purely discretionary authority to the Criminal Court to enable it at any stage of an inquiry, trial or proceedings under this Code: (a) to summon any person as a witness or to examine any person in attendance though not summoned as a witness or (b) to re-call and re-examine any person whose evidence has already been recorded by the Court, if his evidence appears to be essential for the just decision of the case. The second part of the Section aforesaid is mandatory and compels the Court to take any of the above steps if evidence of any person appears to it to be essential for the just decision of the case.[Please see Manoj Bali vs. Girish Dhingra Latest HLJ 2009(HP) 161 Para 10] 17. In the instant case, the accused-respondent has denied the writings, signatures and stamp on the Post Card Mark-A and B in answer to question No.10. The aforesaid post cards are alleged to have been written on 11.6.2003 and 20.6.2003 whereas, the date on the cheque Exhibit CW1/A is 10.4.2006. There is no overwriting on the date. The post card mark B did mention the cheque number and amount but not the date. In both the post-cards, the balance shown on 21.10.2002 is also different. The statutory notice was sent by the petitioner which, according to him was neither responded nor the amount was paid. Therefore, in these circumstances, the court is not supposed to obtain or create an evidence for and on behalf of the accused as prayed. In both the post-cards, the balance shown on 21.10.2002 is also different. The statutory notice was sent by the petitioner which, according to him was neither responded nor the amount was paid. Therefore, in these circumstances, the court is not supposed to obtain or create an evidence for and on behalf of the accused as prayed. To prove the writings and signatures of the complainant on the post-card could be resorted to by the accused respondent by other known legal method by pressing into service Sections 47 or 73 of the Evidence Act. To prove his defence the accused is not required to prove his case, like the prosecution to its hilt. It is only the preponderance of probability. 18. The accused/ respondent is yet to lead his evidence in defence. However, the request of the respondent does not fall within the ambit of Section 311 Cr.P.C. read with Section 45 of the Evidence Act. 19. Accordingly, the impugned order passed by the learned Sessions Judge is wrong and illegal, therefore, unsustainable, hence set aside. Consequently the application moved under Section 311 Cr.P.C. by the accused-respondent stands dismissed. 20. Trial Court record be returned forthwith. Parties to appear before the court below, on 2.4.2009 and the accused-respondent shall furnish the list of defence witnesses, if any, to be examined by him within a week from the date aforesaid and the learned trial court shall fix a date for the defence evidence at the earliest convenient date to the parties.