Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 466 (HP)

JAGDISH CHAND v. KARTAR CHAND

2009-05-15

SURINDER SINGH

body2009
JUDGMENT Surinder Singh,J(Oral):-Petitioner is an accused in the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act. The evidence in the case was led by the complainant and the accused was also examined under Section 313 Cr.P.C. Thereafter, it was detected that the complainant did not examine himself. Thus, he moved an application under Section 311 of the Code of Criminal Procedure containing therein that he had filed two complaints with respect to the two separate cheques against the accused-petitioner in the same court. The counsel for the complainant due to the misconception and under the wrong impression without examining the complainant closed his evidence on 11.6.2007. Therefore, he made a request for his examination which was essential and necessary for the justice of the case. 2. The request was allowed and the complainant was permitted to be examined in support of his case which was assailed by filing the Criminal Revision Petition under Section 482 Cr.P.C. Since the revision petition against the impugned order was not competent, therefore, vide order dated 10.12.2008 the petition was admitted under Section 482 of the Code of Criminal Procedure for the alternative prayer therein. Sh. Ajay Sharma, learned counsel for the petitioner forcefully argued that the respondent was accorded many opportunities to examine his witness but knowing fully well his counsel closed the evidence and the statement of the accused-petitioner was also recorded under Section 313 Cr.P.C. and it was thereafter that an application under Section 311 of the Code of Criminal Procedure for his own examination was moved by the respondent and its allowing was a mis-carriage of justice. 3. I have considered the above contentions raised by the learned counsel and have carefully examined the provisions of Section 311 Cr.P.C.. 4. The first part of the section aforesaid gives purely discretionary authority to the 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 and the Court, if his evidence appears to the essential for the just decision of the case. 5. 5. 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. 6. Section 311 of the Code is a supplement enabling provision and in certain circumstances imposing on the Court the duty of examining a material witness who could not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. In the instant case, the counsel for the respondent-complainant, is remiss in some way may be for the reason contended in the application but for that the party should not be allowed to suffer by not examining himself. In fact by doing so, the respondent will not gain anything and in case he is examined no prejudice will be caused to the accused-petitioner more specifically when he had not specifically put forth any defence even in his statement under Section 313 Cr.P.C. which is only a denial simplicitor. 7. Learned trial Court on examining the facts rightly concluded that the respondent who had filed the complaint against the accused-petitioner is a material witness for the just decision of the case. Once this conclusion is made another part of the section becomes mandatory as the complainant being a material witness has to be examined by the Court. In this behalf reliance can be put on the judgment of this Court in State of H.P. Vs. Ravi Kumar, 2008 (3) Shim.L.C. 412 . Since there is no abuse of process or wrong exercise of jurisdiction by the learned trial Court, the petition is dismissed. In this behalf reliance can be put on the judgment of this Court in State of H.P. Vs. Ravi Kumar, 2008 (3) Shim.L.C. 412 . Since there is no abuse of process or wrong exercise of jurisdiction by the learned trial Court, the petition is dismissed. The parties are hereby directed to be present before the learned trial Court on 18.6.2009. 8. The record of the lower Court be returned forthwith.