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2015 DIGILAW 156 (HP)

Akshi Thakur v. Parveen Sharma

2015-03-09

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, Judge Since common questions of law and facts are involved in both theses petitions, therefore, they were taken up together for disposal. 2. These petitions under Section 482 of the Code of Criminal Procedure (for short ‘Code’) has been preferred against the order passed by the learned Additional Sessions Judge, Kullu on 5.9.2014, whereby he set aside the order passed by the Special Judicial Magistrate, Kullu and allowed the application preferred by the respondent under Section 311 of the Code. 3. The respondent is the complainant who instituted a complaint under Section 138 of the Negotiable Instruments Act (for short the ‘Act’). The present application under Section 311 of the Code has been moved for the second time by the complainant alleging there in that due to inadvertent mistake the counsel for the complainant could not tender and prove the copies of statements of account of the Jammu and Kashmir Bank Ltd. Kullu Branch at the time of his evidence and therefore, she intends to prove the same by calling the Manager/dealing hand. 4. In reply filed by the petitioner, this application was opposed on the ground that the bank clerk/Manager has already been examined by the complainant on 18.6.2013 as PWS 2 and 3 and furthermore this application was an attempt to fill in lacunas in the complainant story, which would cause prejudice to the petitioner. 5. Learned Magistrate vide order dated 27.5.2014 held the application to be not maintainable by holding that the complainant herself has not taken any steps or care to call and examine the additional witnesses after having been permitted to do so earlier on 31.10.2012. 6. Upon revision being filed before the learned Additional Sessions Judge, Kullu, the application came to be allowed by holding that since the revisionist i.e. respondent herein wants to examine only one witness to prove the payment made by the respondent before the issuance of the cheque by the petitioner in favour of the respondent, the interest of justice demands that the application be allowed. 7. This order of learned Additional Sessions Judge, Kullu has been assailed before this Court on the ground that since the respondent had failed to take the benefit of the earlier order, whereby her application under Section 311 of the Code of Criminal Procedure had been allowed, therefore, the present application was not maintainable. 7. This order of learned Additional Sessions Judge, Kullu has been assailed before this Court on the ground that since the respondent had failed to take the benefit of the earlier order, whereby her application under Section 311 of the Code of Criminal Procedure had been allowed, therefore, the present application was not maintainable. It was further contended that the respondent could not be permitted to fill in lacuna in the case. I have heard the learned counsel for the parties and gone through the records of the case. 8. Section 311 of the Code of Criminal Procedure reads thus:- “311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, 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.” The aforesaid provision has been subject matter of decision of the various High Courts including this Court as also before the Hon’ble Supreme Court and the same were noticed by this Court in Anil Chauhan Vs. Onam Educational Society, Mandi, Latest Him. L. J. 2014 (H.P) 1080 and after noticing the same, it was held as under:- “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 versus Ebrahim Haji Husen Sanghani and others 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 Mandras, R.N.Kakkar Versus Hanif Gafoor Naviwala and others 1996 CRI.L.J. 365 Bombay. 11. On the other hand, the learned counsel for the respondent has relied upon Iddar & Ors. versus Aabida & anr. 2007(2) S.L.J. (S.C.) 1311, State of H.P. Versus Ravi Kumar 2008(3) Shim. LC 412, Manoj Bali versus Girish Dhingra 2009 (1) Shim. LC 170, Parveen Dogra and another versus State of Himachal Pradesh 2013 (2) Shim. LC 621 and Natasha Singh versus Central Bureau of Investigation (State) (2013) 5 SCC 741 . 12. versus Aabida & anr. 2007(2) S.L.J. (S.C.) 1311, State of H.P. Versus Ravi Kumar 2008(3) Shim. LC 412, Manoj Bali versus Girish Dhingra 2009 (1) Shim. LC 170, Parveen Dogra and another versus State of Himachal Pradesh 2013 (2) Shim. LC 621 and Natasha Singh versus 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 versus 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 i n 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 re examine 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.P.C 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. P.C. 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. P.C. 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.P.C. 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.P.C. 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.” 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. 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).” 9. The factual position in this case is no different from that in Anil Chauhan’s case (supra) and merely because the respondent had on earlier occasion failed to avail the benefit of Section 311 of the Code of Criminal Procedure, the same in view of the principles laid down by the Hon’ble Supreme Court in Raja Ram’s case (supra), cannot be a ground to deny the present application,. 10. Indisputably, the respondent is the holder of the cheque in whose favour a presumption is envisaged under Section 139 of the Negotiable Instruments Act. Moreover, once the petitioner has right of cross-examination, therefore, it cannot be imagined that prejudice, much less serious prejudice shall be caused to him, which may ultimately result in miscarriage of justice in case the application is allowed. After all no party in a trial can be foreclosed from correcting errors and if proper evidence was not adduced or 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. 11. The upshot of the aforesaid discussion is that there is no merit in these petitions and therefore, the same are accordingly dismissed, leaving the parties to bear their costs. The parties through their counsel will appear before the learned trial Magistrate on 27th March, 2015 who shall afford no more than one opportunity to the complainant to examine the witness as proposed in the application under Section 311 Cr.P.C. after rendering assistance of the Court. Since the complaint pertains to the year 2010, the learned Magistrate shall make all endeavor to dispose of the complaint as expeditiously as possible and in no event later than 15th May, 2015.