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2018 DIGILAW 1642 (HP)

Amarjit Malhotra v. Brijender Sharma

2018-09-12

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed for the following relief:- "It is, therefore, respectfully prayed that this petition may kindly be allowed and the impugned order dated 30.12.2017 (Annexure-P-5) passed by the learned Additional Sessions Judge (I), Una, District Una, H.P. and order dated 18.01.2016 passed by the learned Additional Chief Judicial Magistrate Court No.1, Amb, District Una, H.P. may kindly be quashed and set aside in the interest of law, justice, equity & fair play and as such further order which this Hon''ble Court may deem fit proper, in the facts and circumstances of the present case may kindly be passed in favour of the petitioner in the interest of law and justice." 2. Brief facts necessary for adjudication of the present petition, are that in a complaint filed by present respondent under Section 138 of the Negotiable Instruments Act, an application was filed by him under Section 311 of the Code of Criminal Procedure, for allowing the complainant to lead additional evidence/place on record original document exhibited as Ext.D-1, which was so produced by the accused, as per the averments made in the said application. The reasons given for filing of the same were that during the course of crossexamination of the complainant, the accused had confronted him with document Ext. D-1, which was a photocopy of the account statement written by the complainant in his hands. As per the complainant, at that time, he could not make out that as to what was the intention of the accused behind the production of the said photocopy. Subsequently when he searched the document at his residence, he found the original of Ext. D-1 and after going through the contents of the same, he found that Ext. D-1, especially page-1 thereof was fabricated and doctored. In this background, the application was filed by the complainant under Section 311 of the Code of Criminal Procedure praying that he be permitted to lead additional evidence/place said document on record. 3. Petitioner filed reply to the said application and opposed the same. As per the averments made in the reply, as the complainant had admitted the contents of Ext.D-1, therefore, his contention that said document was forged was seriously disputed. 3. Petitioner filed reply to the said application and opposed the same. As per the averments made in the reply, as the complainant had admitted the contents of Ext.D-1, therefore, his contention that said document was forged was seriously disputed. It was further mentioned in the reply that filing of the application was completely misconceived, as the complainant could not be allowed to fill up the lacuna by filing an application under the provisions of Section 311 of the Code of Criminal Procedure. 4. Learned Trial Court vide order dated 18.01.2016 allowed the said application by holding that the production of the document by the complainant would only help the Court to decide the matter judiciously and that the accused could be compensated by costs. Criminal revision filed by the present petitioner against the order passed by the learned Trial Court was dismissed by the Court of learned Additional Sessions Judge-I, Una (H.P.) on 30.12.2017 on the basis of the judgment of the Hon''ble Supreme Court of India in Sethuraman v. Rajamanickam , (2009) CriLJ 2247 by holding that an order passed under Section 311 of the Code of Criminal Procedure was not revisable under Section 397(2) of the Code of Criminal Procedure. 5. Feeling aggrieved, the petitioner has filed the present petition. 6. Learned counsel for the petitioner has strenuously argued that the impugned order passed by the learned Trial Court whereby the application filed by the complainant under section 311 of the Code of Criminal Procedure was allowed is erroneous and perverse as learned Trial Court has erred in not appreciating that filing of the application was nothing but an endeavour by the complainant to fill up the lacuna in his case. Learned counsel has further argued that as execution of Ext.D1 stood expressly admitted by the complainant in the course of his cross-examination, learned Trial Court could not have had allowed the application filed by the complainant under Section 311 of the Code of Criminal Procedure. He has further argued that the application was filed at a belated stage and intent behind filing the application was not only filling up the lacuna, but also to wriggle out of the admission which stood made by the complainant during the course of his cross-examination. 7. He has further argued that the application was filed at a belated stage and intent behind filing the application was not only filling up the lacuna, but also to wriggle out of the admission which stood made by the complainant during the course of his cross-examination. 7. On the other hand, learned counsel for the respondent has argued that the order passed by the learned Trial Court is a well reasoned order and there was no perversity in the same. As per learned counsel, learned Trial Court was well within its jurisdiction to have had allowed the application filed under Section 311 of the Code of Criminal Procedure. He has further argued that a perusal of the order passed by the learned Trial Court demonstrates that the same is a reasoned and speaking order, as after discussing the contents of the application and reply filed by the respondent, learned Trial Court allowed the application filed by the complainant under Section 311 of the Code of Criminal Procedure. Mr. Sharma has further argued that even otherwise in exercise of its powers under Section 482 Cr.PC, this Court would not sit upon the order so passed by the learned Trial Court as an Appellate Court. 8. Having heard learned counsel for the parties and having perused the orders of the learned Courts below, in my considered view, it cannot be said that the order passed by the learned Trial Court suffers from any perversity. 9. Section 311 Cr.PC 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 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." 10. It is apparent from the language of the said section that an application under Section 311 of the Code of Criminal Procedure can be allowed ''at any stage'' of the case, if it is necessary for the just decision of the case. 11. It is apparent from the language of the said section that an application under Section 311 of the Code of Criminal Procedure can be allowed ''at any stage'' of the case, if it is necessary for the just decision of the case. 11. It is not in dispute that Ext.D-1, which was produced in evidence by the accused, is photo copy of the original document which the complainant intends to place on record by way of the application so filed under Section 311 of the Code of Criminal Procedure. 12. It is in this background that learned Trial Court allowed the application by holding that production of document would help the Court to decide the matter judiciously. Therefore, it cannot be said that application had been allowed by the the learned Trial Court simply to fill up the lacuna. After applying its judicial mind, the application was allowed by the learned Trial Court by specifically holding that production of said document would help the Court to decide the matter judiciously. This is strictly in consonance with what is mandated in Section 311 of the Code of Criminal Procedure. Therefore, it cannot be said that the order passed by the learned Trial Court, is either erroneous or perverse. Learned Trial Court was well within its jurisdiction to have had passed the order in view of Section 311 of the Code of Criminal Procedure. This Court is not oblivious to the fact that the document exhibited by the present petitioner was only photo copy of the document whereas what the respondent intends to exhibit is the original of the same. As far as the contention of the learned counsel for the petitioner that when the respondent was in possession of the original document then why he did not produce the same earlier is concerned, apprehension being raised on this ground on behalf of the petitioner about genuineness of the document can be put to rest with the observation that learned Court below while dealing with the document shall look into all these objections of the petitioner. 13. 13. It goes without saying that simply because the application filed by the complainant to place the document on record, has been allowed by learned Trial Court, the same does not absolve the respondent from proving the same strictly in accordance with law and the petitioner shall have the right to oppose the contents of the same. 14. Now coming to the order passed by the learned Additional Sessions Judge-I, Una, in Crl. Revision No.6 of 2016, no perversity can be attributed to the said order also, because learned Additional Sessions Judge rejected the revision petition by relying upon the judgment of Hon''ble Supreme Court of India in Sethuraman. 15. With the aforesaid observations, this petition stands disposed of without interfering with the order impugned. Costs easy.