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2014 DIGILAW 1173 (HP)

Anil Chauhan v. Onam Education Society, Mandi

2014-09-01

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. 1. The petitioner has called in question the order dated 21.06.2014 passed by the learned Additional Chief Judicial Magistrate, Court No. 1. Mandi, in Criminal Case No. 27-3 of 2010-13 whereby the application under Section 311 of the Criminal Procedure Code (for short the Code) preferred by the respondent, has been allowed. 2. Shorn of all necessary facts, the respondent preferred a complaint under Section 138 of the Negotiable Instruments Act on account of dishonour of cheque of sum of Rs. 24 lacs which according to the complainant-respondent had been advanced to the petitioner for construction of school building. 3. The defence of the petitioner was that this cheque had been issued towards security at the time of awarding of the work, but the work awarded to the accused could not be completed as the complainant failed to supply material. After the statement of the complainant had been recorded, an application under Section 311 of the Code came to be filed at his instance whereby they sought permission to produce on record the registration certificate of the society, its memorandum of association, authority letter, balance sheet of the society for the year 2009 to 2012 and complete copy of agreement and further sought permission to examine Shri Sanju Kumar office Clerk, Naresh Kumar Chartered Accountant as witnesses. 4. This application was contested by the petitioner herein by claiming that the witness, who appeared on behalf of the complainant, was not authorized to file the complaint and who in his cross-examination admitted that he had not filed any authority letter and thereby had failed to prove his authorization. It was further averred that confronted with such situation, the complainant had now prepared and manipulated all the alleged documents after his cross-examination and the application was belated as having been filed after a lapse of eight months which gives rise to the presumption that all these documents have been manipulated and prepared after cross-examination of the witness. 5. The learned Additional Chief Judicial Magistrate allowed the application vide order dated 21.06.2014 which has been challenged before this Court on the same and similar grounds as were raised before the learned Magistrate. 6. I have heard Shri Virender Singh Chauhan, learned counsel for the petitioner and Shri Suneet Goel, learned counsel for the respondent. 7. 5. The learned Additional Chief Judicial Magistrate allowed the application vide order dated 21.06.2014 which has been challenged before this Court on the same and similar grounds as were raised before the learned Magistrate. 6. I have heard Shri Virender Singh Chauhan, learned counsel for the petitioner and Shri Suneet Goel, learned counsel for the respondent. 7. The learned counsel for the petitioner has argued that the order passed by the learned Court below is not sustainable as it has given an opportunity to the complainant to manufacture and prepare forged documents after taking cue from what had been put to him in the cross-examination. 8. On the other hand, the learned counsel for the respondent would contend that since the provisions of Section 311 of the Code are required to be liberally construed and, therefore, there has been no illegality or infirmity committed by the learned Magistrate while passing the impugned order. 9. I have considered the rival contentions of the learned counsel for the parties and gone through the records of the case. 10. The learned counsel for the petitioner in support of his arguments regarding nature and scope of Section 311 of the Code has relied upon B.D. Goel vs. Ebrahim Haji Husen Sanghani and other, 2001 CRI. L.J. 450 Bombay, M/s. Dandy Knit Garments and another versus M/s. Subiksha Spinners (P) Ltd. 2000 CRI. L.J. 624 Madras, R.N. Kakkar versus Hanif Gafoor Naviwala and other, 1996 CRI. L.J. 365 Bombay. 11. On the other hand, the learned counsel for the respondent has relied upon Iddar & other vs. Aabida & another, 2007(2) S.L.J. (S.C.) 1311, State of H.P. vs. Ravi Kumar 2008(3) Shim. LC 412, Manoj Bali vs. Girish Dhingra, 2009 (1) Shim. LC 170, Parveen Dogra and another vs. State of Himachal Pradesh 2013 (2) Shim. LC 621 and Natasha Singh vs. Central Bureau of Investigation (State) (2013) 5 SCC 741 . 12. LC 412, Manoj Bali vs. Girish Dhingra, 2009 (1) Shim. LC 170, Parveen Dogra and another vs. State of Himachal Pradesh 2013 (2) Shim. LC 621 and Natasha Singh vs. Central Bureau of Investigation (State) (2013) 5 SCC 741 . 12. None of the parties has referred to the later judgment of the Hon’ble Supreme Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013) 14 SCC 461 wherein the entire law on the subject has been discussed and, therefore, it is not necessary to fall back on the judgments of this Court or the earlier judgment of Hon’ble Supreme Court in the case of Natasha Singh (supra) heavily relied upon by the learned counsel for the respondent since this judgment also stands considered in Raja Ram’s case (supra). The Hon’ble Supreme Court has clearly held that the powers under Section 311 of the Code to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined, can be exercised at any stage provided that the same is required for the just decision of the case. 13. After discussing in detail the previous judgments of the Hon’ble Supreme Court on the subject, the following principles in Raja Ram’s case (supra) were culled out:- “17.1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 Cr PC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person. 17.4. The exercise of power under Section 311 Cr PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. 17.4. The exercise of power under Section 311 Cr PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Cr PC simultaneously imposes a duty on the Court to determine the truth and to render a just decision. 17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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. 17.11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 Cr PC must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 14. Keeping in view the above principles in mind, I proceed to examine the case in hand. The learned trial Magistrate has accorded the following reasons for allowing the application:- “21.6.2014. Present : Sh. R.K.Nanda, ld. Adv with the complainant. Sh. Narender Chaudhary, ld. Adv for the accused. An exemption application on behalf of accused has been moved, which is considered and allowed for the assigned reasons. This order shall dispose of an application U/S 311 Cr. P.C. having been moved by the complainant seeking production of documents and examining Sanju Kumar, office clerk and CA Naresh Kumar, for just decision of the case. It is averred by the applicant that due to inadvertence, the registration certificate of society, memorandum of association, authority letter and balance sheet could not be filed with the complaint, which are necessary for just decision of the case, as such complainant intends to examine witnesses concerning the same as above documents are also sought to be filed. As against it has been averred by the accused that application is not maintainable as it is not mentioned as to what prevented the applicant from filing these documents before. That these documents have been prepared after examination of the complainant as per convenience, as such they cannot be taken on record as they are sought to be filed to fill up the lacuna. After hearing the ld. That these documents have been prepared after examination of the complainant as per convenience, as such they cannot be taken on record as they are sought to be filed to fill up the lacuna. After hearing the ld. Respective counsel for the parties, it transpires that complainant intends to place on record documents pertaining to complainant society, such as authorization and balance sheet etc. as mentioned above and witnesses connected with that are also to be examined. Accused has raised objection to the same by stating that reason for filing the application at this stage has not been mentioned and that it would cause prejudice to the accused. However, the respective pleadings of the parties goes to show that the reason has been mentioned by the complainant, whereas, documents which are sought to be filed by the complainant and the witnesses to the same appear to be necessary for the proper adjudication of the matter and as such there is substance in the assertion of the complainant and the application is allowed. Let file be put up for CWs for 5.7.2014. Steps be taken within 5 days. Addl. Chief Judicial Magistrate, Court No.1, Mandi (HP).” 15. The only ground taken by the petitioner is that the complainant under the garb of the order would now fill up the lacuna in his case and create and manipulate the documents. To my mind, this submission is totally ill-founded because the petitioner would always have a right to cross-examine the witnesses. Moreover, in terms of the principles as laid down by the Hon’ble Supreme Court in para 17.5 (supra) the exercise of power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 16. Since the petitioner has a right of cross-examination, therefore, I find that no prejudice much less serious prejudice shall be caused to the petitioner which may result in miscarriage of justice in case the order passed by the learned Magistrate is upheld. 16. Since the petitioner has a right of cross-examination, therefore, I find that no prejudice much less serious prejudice shall be caused to the petitioner which may result in miscarriage of justice in case the order passed by the learned Magistrate is upheld. This Court is required to bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court is required to be magnanimous in permitting such mistakes to be rectified – 17.10 of Raja Ram’s case (supra). 17. Therefore, in view of the aforesaid discussion and the law on the subject, I find myself unable to agree with the submissions of the petitioner and accordingly the present revision petition is dismissed, along with pending application, if any, leaving the parties to bear their own costs.