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Himachal Pradesh High Court · body

2011 DIGILAW 2381 (HP)

O. C. Doegar v. Ganesh Dutt Sharma

2011-08-10

SURINDER SINGH

body2011
JUDGEMENT Surinder Singh, J. The petitioner herein, is a complainant in Case No.1 62-3 of 2007 under Section 138 of the Negotiable Instrument Act. He has directed the present criminal revision petition against the order of the learned trial Court dated 29.3.20 1 1 passed under Section 311 of the Code of Criminal Procedure, in short ‘the Code’, allowing the application of respondent-accused to produce Mamta and Raj Kumar as defence witnesses. 2. The matter being short can be disposed of at the admission stage. Therefore, final arguments were heard. 3. Shri Rajeev Sood, learned counsel for the petitioner herein vehemently argued that there was nothing to substantiate the unsubstantiated and unconfirmed facts raised in the application moved under Section 311 of the Code by the respondent- accused. Thus, he could not have been allowed to fill up the lacuna left in the evidence, even no such case was either suggested in the cross-examination of any of the witnesses or explained under Section 313 of the Code. Since the learned trial Court failed to look into this aspect of the matter that altogether new defence was being raised which is factually and legally incorrect, the request to examine the witnesses named in the application should not have been acceded to. 4. Since the learned trial Court failed to look into this aspect of the matter that altogether new defence was being raised which is factually and legally incorrect, the request to examine the witnesses named in the application should not have been acceded to. 4. Shri Bhupender Gupta, learned Senior Advocate duly instructed by Shri Janinder Mittal, Advocate, for the accused-respondent, countered the aforesaid arguments submitted that right from the very beginning the case of the accused has been that he never issued the cheque in question in favour of the petitioner and also that some of the signed cheques alongwith cheque book were lost, even this defence was put to the petitioner in his cross-examination and also stated by him to Question No.8 of his statement under Section 313 of the Code, but when the petitioner moved an application for producing the record pertaining to one Shri Pankaj Kumar, with respect to a cheque in the series and also the copy of an agreement alleged to have been executed inter-se the accused and Pankaj Kumar aforesaid, it was then suspected that his staff might have colluded with the petitioner and Pankaj and a mischief must have been played with the accused, which necessitated the present application moved before the learned trial Court under Section 311 of the Code to bring on record the truth and their evidence would be essential, so as to enable the learned Court to come to the just decision of the case. 5. I have given my thoughtful consideration to the rival contentions of the parties and I do find substance in the submissions made by the learned counsel for the respondent. 6. Section 311 of the Code reads as under:- “311. Power to summon material witness, or examine person present- Any court may, at any stage of any inquiry, trial or other proceedings under this Court, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case”. This section consists of two parts viz, (a) giving discretion to the court to examine the witness at any stage; and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables and in certain circumstances, imposes on the Court the duty of summoning witnesses who would have been otherwise brought before the Court. This Section confers a wide discretion on the Court to act as the exigencies of justice require. Section 165 of the Indian Evidence Act empowers a Judge to put questions or order production and this power is complementary to its powers under Section 311 of the Code. These two sections between them confer jurisdiction on the Court to act in aid of justice. 7. As a matter of fact, the object of Section 311 of the Code is to bring on record evidence not only from the point of view of the fact and the prosecution but also from the point of view of the orderly society. If a witness called by the Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant or the accused as the case may be. The position highlighted by the Apex Court in Zahira Habibullah Sheikh v. State of Gujarat, [ (2006)3 SCC 374], which has considered the object and scope of Section 311 of the Code. The determinative factor of which is whether it is essential to the just decision of the case, irrespective of the stage of inquiry or trial and this power has to be exercised by the Court judiciously, as the wider the power the greater is the necessity for application of judicial mind. 8. The determinative factor of which is whether it is essential to the just decision of the case, irrespective of the stage of inquiry or trial and this power has to be exercised by the Court judiciously, as the wider the power the greater is the necessity for application of judicial mind. 8. In Iddar and others v. Aabia and another [2007 (2)S.L.J. (SC) 1311], the Apex Court held that this supplementary enabling provision and in certain circumstances imposing on the Court the duty of examining a material witness who would 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. 9. Further, in Rajendra Prasad v. Narcotic Cell [ (1999) 6 SCC 110], the Apex Court observed that the 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. 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. 10. 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. 10. In the instant case, as already stated above, the case of the respondent has been that he had lost some of the cheques alongwith cheque book, which fact was suggested to the complainant as also explained in his statement under Section 313 of the Code. The applicant sought permission for summoning the case file of Pankaj Kumar bearing No.126/3 of 2007 titled Pankaj Sood vs. Ganesh Dutt, decided on 26.3.2008 for the purpose of cross-examination to prove the fact that the cheque book which is alleged to have been lost out of that one cheque was issued to Shri Pankaj Kumar which ended in compromise between Pankaj and the accused. Petitioner also placed on record alongwith application the duplicate copy of the agreement. It is against this background the respondent moved an application under Section 311 of the Code to examine his employees Mamta and Raj Kumar to prove that in his absence, when he was in custody of the Punjab & Haryana Police regarding theft of the cars etc. Many blank signed cheques alongwith cheque book were in the custody of Shri Bimleshwar. When the petitioner was released from the police custody, he found the said cheque book and some other papers missing and some cheques were allegedly misused by said Shri Bimleshwar and few were presented by them at Saharanpur. Thus the above circumstances made him to believe that the complainant had some link with Bimleshwar aforesaid and alleged collusion, thus sought permission to examine Mamta and Raj Kumar his employees. 11. This application was contested on the ground that they were not the employees of the accused. He did not lodge any FIR or made any complaint against them about missing of the cheque book etc., nor it was his case in the cross-examination, therefore, the prayer should not be allowed. 12. Learned trial Court on considering the rival contentions in the light of the defence raised came to the conclusion that the said witnesses are material for just decision of the case. 12. Learned trial Court on considering the rival contentions in the light of the defence raised came to the conclusion that the said witnesses are material for just decision of the case. To my mind also, they appear to be material witnesses, who could throw light on the actual aspect of the case to facilitate the Court to reach to the truth, their evidence is essential to reach the just decision, more specifically when the respondent-accused is stated to have sent a letter Ext.DW2/A to his Banker in the year 2003 to stop the payment. Once this conclusion is arrived at, second part of Section 311 of the Code is imperative to examine the witnesses aforesaid to arrive at a just decision. Further the complainant shall have full opportunity to cross-examine them to elicit the truth. 13. Thus, in my considered opinion, the impugned order does not suffer from any illegality, impropriety or incorrectness, therefore, the revision petition is without any merit, hence dismissed. 14. The parties are hereby directed to be present before the learned trial Court on 26.8.2011. The record of the trial Court be returned forthwith before the said aforesaid.