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2012 DIGILAW 597 (PNJ)

I. Hassan v. Ajay Dutt

2012-04-20

RAMESHWAR SINGH MALIK

body2012
JUDGMENT Mr. Rameshwar Singh Malik J.: (Oral) - The present petition is directed against the order dated 09.11.2010 passed by the learned Judicial Magistrate 1st Class, Gurgaon, whereby the defence evidence of the petitioners was closed because of the mistaken statement made by the petitioners in the absence of their counsel. The second Criminal Revision No.1 of 2011 is directed against the order dated 25.11.2010 passed by the learned Judicial Magistrate 1st Class, Gurgaon, thereby declining the prayer of the petitioners for leading additional evidence, dismissing their application under Section 311 Cr.P.C. 2. Both the above said criminal revision petitions are between the same parties and primarily on the overlapping issues, hence both the criminal revision petitions are proposed to be decided vide this common order. Facts first: Respondent No.1-complainant filed a criminal complaint under Section 138/142 of the Negotiable Instruments Act (for short ‘NI, Act’) and Section 420 of the Indian Penal Code (for short ‘IPC’) against the petitioners. 3. The case set up by the petitioners before the learned trial Court was that they had already paid the cheque amount and the complaint was liable to be dismissed. To substantiate this plea, the petitioners submitted their list of witnesses, deposited the requisite charges and diet money etc., for summoning the official witnesses who were bank officers/officials as they were supposed to prove, by referring to official record of the bank that the petitioners have already paid back the amount of Rs.7,65,000/-, vide cheque No.644061 dated 28.04.1999 issued by the Society in favour of Kamal Sharma and he encashed the same way back in the year 1999. The petitioners did whatever they were required to do for procuring the attendance of official witnesses. 4. It is the further pleaded case of the petitioners that the examination of the bank officials was necessary for proving the fact that Oriental Bank of Commerce, Rewari had issued bank certificate to the effect that cheque No.30335 dated 05.11.1996 pertains to Kamal Sharma, which was deposited by him in the Society from his account No.9274. The examination of other bank official of UCO Bank was necessary to prove the fact regarding deposit of cheque bearing No.644061 dated 28.04.1999 issued by the Society in favour of Kamal Sharma, which was also encashed by him, thereby completely absolving the petitioners from any liability, in this regard. 5. The examination of other bank official of UCO Bank was necessary to prove the fact regarding deposit of cheque bearing No.644061 dated 28.04.1999 issued by the Society in favour of Kamal Sharma, which was also encashed by him, thereby completely absolving the petitioners from any liability, in this regard. 5. It is also the pleaded case of the petitioners that the requisite charges had been deposited and the official witnesses had been duly served but they were not coming forward. During this period, when the petitioners were making all necessary efforts on their part to examine the official witnesses for the above said purpose, on the relevant date i.e.09.11.2010, counsel for the petitioners before the learned trial Court was not available. The petitioners appeared and under a bona fide wrong impression, made a wrong statement before the Court that they want to close their evidence as no other witness was to be examined, whereas, as a matter of fact, the above said official witnesses from the banks were yet to be examined. This material fact was not in the knowledge of the petitioners when they appeared before the Court in person in the absence of their counsel on 09.11.2010. Thus, without referring to the judicial record available on the case file, learned trial Court vide impugned order dated 09.11.2010 fixed the case for arguments while adjourning the same to 16.11.2010. The Criminal Revision No.3194 of 2010 has been filed by the petitioners against the order dated 09.11.2010. When this case came up for motion hearing before this Court on 03.12.2010, notice of motion was issued and the learned trial Court was directed to adjourn the case beyond the date fixed by this Court. 6. In the interregnum, the petitioners also moved an application before the learned trial Court under Section 311 Cr.P.C. They sought permission of the Court to examine above said two bank officers/officials by way of additional evidence, because the evidence of the petitioners was closed on the basis of their statement made inadvertently and under the wrong impression that the summoned witnesses have already been examined. 7. Reply to this application of the petitioners was filed by the respondent-complainant. The learned trial Court dismissed the application of the petitioners vide order dated 25.11.2010. Feeling aggrieved against this order, the petitioners have filed the Criminal Revision No.1 of 2011. 7. Reply to this application of the petitioners was filed by the respondent-complainant. The learned trial Court dismissed the application of the petitioners vide order dated 25.11.2010. Feeling aggrieved against this order, the petitioners have filed the Criminal Revision No.1 of 2011. That is how both the matters are interconnected and between the same parties, hence being decided vide this common order. 8. Learned counsel for the petitioners vehemently contended that impugned order dated 09.11.2010 passed in Criminal Revision No.3194 of 2010 and the order dated 25.11.2010 passed in Criminal Revision No.1 of 2011 are against the settled principles of law, contrary to the true facts and circumstances of the case and the same were unsustainable in law. 9. So far as the facts are concerned, the same have been culled out from Criminal Revision No.1 of the 2011. Learned counsel for the petitioners would contend that the facts contained in para No.2 and 3 of their application dated 16.11.2010 (Annexure P-14) have not been denied by the respondent vide his reply dated 16.11.2010 (Annexure P-15). 10. It would be appropriate to reproduce the contents of para No.2 and 3 of the application (Annexure P-14) , which read as under: That the accused/applicant had moved an application before this Hon’ble Court for the summoning of the defence witnesses for 21.10.2010 and this Court vide order dated 11.10.2010 had partly allowed the aforesaid application and the diet money of the official witness was ordered to be deposited, whereas the other witness was summoned at the applicant’s own responsibility and the applicants were directed to take the dasti summons. Accordingly, the applicant had taken the dasti summons and had got the said summoned served upon the official witness. The photocopy of the same is attached herewith. The summon upon the official witness was served on 13.10.2010 for 21.10.2010. That on 21.10.2010, however, no witness turned up as the matter was adjourned for 09.11.2010. On 09.11.2010 the applicants who are over 70 years of age inadvertently made a statement that we do not want to examine any other witness in their defence. A close perusal of their statement and the order dated 09.11.2010 would reflect that the statement was recorded in the absence of the counsel of the applicant. The applicants were not in fact aware of the consequence of the statement. A close perusal of their statement and the order dated 09.11.2010 would reflect that the statement was recorded in the absence of the counsel of the applicant. The applicants were not in fact aware of the consequence of the statement. The mere fact that they had stated that they do not want to examine “any other witness” clearly suggests that perhaps they were under the impression that the summoned witness have already been examined. Whereas in fact the witnesses though were summoned but were not examined as they had not appeared. 11. The corresponding paragraphs No.2 and 3 of the reply (Annexure P-15) read as under: That para no. 2 of the application also relates to matter records and hence no comment. That in reply to para no. 3 of the application, it is submitted that the accused have made statements on 09.11.2010 for closing their defences and hence they cannot back out from their statement, which was made voluntarily. Hence, they are bound by the same. 12. Learned counsel for the petitioners further contended that in view of the above said admitted factual aspect of the matter, it was the bounden duty of the Court to secure the presence of the official witnesses who were not coming forward despite having been duly served on deposit of the requisite charges and diet money etc. by the petitioners. Whatever the petitioners could do, they had done sincerely on their part but it was not in the control of the petitioners to secure the physical presence of the official witnesses before the Court by using force. In such a situation, learned counsel would contend that the learned trial Court ought to have adopted coercive methods as per the relevant provisions of the law so as to secure the presence of the official witnesses. 13. Learned counsel for the petitioners concluded by submitting that in the given circumstances of the present case, the petitioners have been made to suffer causing serious prejudice to them without there being any fault on their part whereas the other side was trying to get undue benefit only on the basis of technicalities ignoring the substantive aspect of the matter. 14. 14. Per contra, learned counsel for the respondent-complainant would submit that both the revision petitions were without any merit and have been filed before this Court only with a view to delay the matter because the petitioners have closed their evidence by making conscious statements. Learned counsel for the respondents also contended that the petitioners were guilty of concealment because they have withheld the material fact from the notice of this Court that order dated 25.11.2010 had already been passed before the first revision petition bearing Criminal Revision No.3194 of 2010 was filed by them before this Court against the order dated 09.11.2010. Finally, he prayed for dismissal of both the revision petitions. 15. I have heard learned counsel for the parties and with their able assistance have gone through the record of both the cases. After giving my thoughtful consideration to the rival contentions raised on behalf of both the parties and in view of the peculiar facts and circumstances of the present case, this Court is of the considered opinion that both the criminal revisions deserve to be allowed and the impugned orders dated 09.11.2010 and 25.11.2010 were liable to be set aside, being unsustainable in law, for more than one reasons. 16. Firstly, the material averments taken by the petitioners in para No.2 and 3 of their application (Annexure P-14) have not been denied by the respondent-complainant in his reply (Annexure P-15), contents whereof have been reproduced above. Once it is so, petitioners have successfully laid the foundation that the statement which was made by them on 09.11.2010 before the trial court, in the absence of their counsel was, as a matter of fact, made inadvertently and under bona fide wrong impression that the summoned witnesses have already been examined. Thereafter, without losing any time, the petitioners moved the requisite application under Section 311 Cr.P.C. vide Annexure P-14, on the very next date of hearing i.e.16.11.2010 because on 09.11.2010, the case was adjourned to 16.11.2010 for arguments. In this view of the matter, the petitioners have successfully pleaded and established on record their bona fide that the statement made by them on 09.11.2010 to the effect that they want to close their defence evidence as no other witness was to be examined, was made under a bona fide wrong impression. In this view of the matter, the petitioners have successfully pleaded and established on record their bona fide that the statement made by them on 09.11.2010 to the effect that they want to close their defence evidence as no other witness was to be examined, was made under a bona fide wrong impression. Having said that, I have no hesitation to set aside the order dated 09.11.2010 challenged by way of Criminal Revision No.3194 of 2010. 17. Now coming to the order dated 25.11.2010, it is pertinent to note that a bare perusal of this impugned order would show that the learned trial Court has committed patent illegality while not appreciating the true factual aspect of the matter and also the settled principles of law applicable thereof. I say so because the learned trial Court has failed to delve deep into the real crux of the matter that examination of these two official witnesses, who are being sought to be examined by the petitioners, would go to the root of the cause. 18. Further, it is the specific and categoric case of the petitioners that they had already paid the cheque amount and the complaint was liable to be dismissed for that reason. They have further pleaded that the amount in question had been paid by way of cheque No.644061 dated 28.04.1999 and this fact was to be proved by the concerned officer/official of the UCO Bank. 19. The other officer/official of the Oriental Bank of Commerce, Rewari, was to prove the bank certificate to the effect that cheque No.30335 dated 05.11.1996 pertains to Kamal Sharma, which was deposited by him in the Society from his account No. 9274. Once, the petitioners have taken so categoric and definite averments based on the official record, the learned trial Court ought to have granted them due opportunity to lead their defence evidence. 20. It is equally important to note that the petitioners have filed the list of witnesses, deposited the requisite amount and diet money etc.for summoning the witnesses, who were duly served also but not appearing before the Court. Thereafter, it was for the learned trial Court to ensure the presence of these official witnesses by adopting coercive method, in accordance with law, if required. Thereafter, it was for the learned trial Court to ensure the presence of these official witnesses by adopting coercive method, in accordance with law, if required. In such a situation, the petitioners were not at fault because they had made sincere efforts on their part and it was not in their control to ensure the physical presence of the official witnesses, who were not coming forward despite due service. 21. In view of the above, I unhesitatingly hold that once a party has submitted the list of witnesses, deposited the requisite amount and diet money etc. with due permission of the Court, got the summons issued and the official witnesses sought to be summoned duly served, thereafter the Court cannot find fault with that litigating party, if the official witnesses are not coming forward to appear as witnesses before the Court. In such a situation, it will be the bounden duty of the Court to ensure the presence of the official witnesses by adopting coercive method, if required. The Court has got the power to do so under the relevant provisions of law and in such a situation the Court must not feel helpless. 22. On the other hand, the litigating party having done, whatever, it could have done, cannot be made to suffer for none of its fault as seems to have been done, in the present case. 23. The next question that falls for consideration of this Court is the object and scope of Section 311 Cr.P.C. It is the settled proposition of law that the rules of procedure are handmaids of justice and are supposed to be followed for advancing the cause of justice. 24. The Hon’ble Supreme Court in the case of of Zahira Habibulla H.Sheikh and another versus State of Gujarat & Ors. 2004 (2) RCR (Crl.) 836 has again reiterated the law laid down in this regard. The relevant observations made by the Hon’ble Supreme Court, which can be gainfully referred here, are as under: “44. The power of the Court under Section 165 of the Evidence Act is in a way complimentary to its power under Section 311 of the Code. 2004 (2) RCR (Crl.) 836 has again reiterated the law laid down in this regard. The relevant observations made by the Hon’ble Supreme Court, which can be gainfully referred here, are as under: “44. The power of the Court under Section 165 of the Evidence Act is in a way complimentary to its power under Section 311 of the Code. The Section consists of two parts i.e: (i) giving a discretion to the Court to examine the witness at any stage, and (ii) the mandatory portion which compels the Court to examine a witness if his discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal Vs. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as “any Court”, “at any stage” , or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produced some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 46. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 46. Ultimately, as noted above, ad nauseam the duty of the court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer on any party any right to examine, cross-examine and reexamine any witness. This is a power given to the court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by courts to power under this Section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.” 25. Similarly, the Apex Court in Zahira Habibullah Sheikh (5) and another Vs. State of Gujarat and others 2006 (1) Apex(Crl.) 649 had an occasion to deal with the object of Section 311 Cr.P.C. The observations which can be aptly followed, are as under: “29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused 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 crossexamine 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 crossexamine 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. These aspects were highlighted in Jamatraj Kewalji Govani Vs. State of Maharashtra.” 26. It is the primary duty of the court to reach as close to the truth as possible by obtaining proper proof of such facts which would lead to a just and correct decision of the case. These aspects were highlighted in Jamatraj Kewalji Govani Vs. State of Maharashtra.” 26. It is the primary duty of the court to reach as close to the truth as possible by obtaining proper proof of such facts which would lead to a just and correct decision of the case. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth, in order to enable the Court to arrive at a just decision of the case, cannot be said as filling-in lacuna in the case. The courts are under legal obligation to make every possible effort, in the given fact situation of each case, to reach the truth so as to enable itself to arrive at a just decision for achieving the laudable object of doing substantial justice between the parties. The view taken by this Court also finds support from the judgment of the Hon’ble Supreme Court in the case of U.T of Dadra and Haveli & anr. versus Fateh Sinh Mohn Sinh 2006(4) RCR (Crl.) 113 and Anuman Ram versus State of Rajasthan 2008(4) RCR (Crl.) 823. 27. It is also the settled proposition of law that wherever the Court is exercising it is discretionary power, including the one under Section 311 Cr.P.C., it is to be exercised judiciously. I say so because wider is the power, greater is the necessity for application of judicious mind. Thus, the discretionary powers are supposed to be exercised sparingly and with circumspection. 28. Coming back to the facts of the present case, the petitioners have not only submitted the list of witnesses but have also deposited the requisite amount including the diet money for the official witnesses sought to be summoned. Summons were got issued and the official witnesses were duly served. In case, still the official witnesses were not coming forward, as happened in the present case, it becomes obligatory on the Court to ensure the presence of the official witnesses because the petitioners would not be having any power to ensure their physical presence before the Court. 29. In the present case, the learned trial Court has failed to discharge its legal obligation. 29. In the present case, the learned trial Court has failed to discharge its legal obligation. Further, in the fact situation of the present case, it was just and expedient to summon these two witnesses because their examination was going to the root of the cause and would certainly facilitate the Court to arrive at a judicious conclusion enabling it to do complete and substantial justice between the parties. Besides this, no prejudice was going to be caused to the other side by summoning these two official witnesses. Since the learned trial Court has not addressed itself on these crucial aspects of the matter, the impugned orders have resulted in miscarriage of justice. 30. No other argument was raised on behalf of either of the parties. 31. In view of what has been discussed above and keeping in view the peculiar facts and circumstances of the present case, coupled with the reasons aforementioned, the impugned orders dated 09.11.2010 and 25.11.2010 being unsustainable in law are liable to be set aside. Therefore, both the impugned orders dated 09.11.2010 in Criminal Revision No.3194 of 2010 and dated 25.11.2010 in Criminal Revision No.1 of 2011 are, hereby set aside. 32. Resultantly, the learned trial Court is directed to proceed further with the trial granting due opportunity to the petitioners to lead their defence evidence keeping in view the observations made above. Accordingly, both the revision petitions stand allowed. ---------0.B.S.0------------