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2018 DIGILAW 861 (JK)

Kuldeep Singh v. Vikas Gupta

2018-11-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), petitioner seeks quashing of order dated 6th April, 2013 passed by learned District Judicial Mobile Magistrate (Traffic) Udhampur, in an application filed by the respondent under Section 540 of the Code of Criminal Procedure, Svt. 1989 in Criminal Complaint titled ‘Mohan Lal vs. Kuldeep Singh’ pending before the learned Magistrate, on the ground that the said order suffers from non-application of mind and is illegal, unjust and against the well-established principles as applicable for the exercise of jurisdiction vested to a Criminal Court under the Code of Criminal Procedure, Svt.1989. 2. The case of the petitioner is that one Mohan Lal (Deceased) preferred a criminal complaint against the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act in the year 2003 and the learned District Judicial Mobile Magistrate (Traffic) Udhampur, after the filing of complaint took cognizance of the complaint and the process came to be issued in the matter. It is stated that the petitioner pursuant to service of notice, caused his appearance in the matter and furnished bail bond & his personal bond to the satisfaction of the learned District Judicial Mobile Magistrate (Traffic), Udhampur and the original complainant produced his witnesses. It is stated that at the time of filing of the complaint the original complainant (Mohan Lal) got his preliminary statement recorded in addition to one witness, namely, Ram Purshotam. But during the course of trial, when the complainant was leading evidence the complainant has chosen not to appear as his own witness and the witness, namely, Ram Purshotam, whose preliminary statement was recorded at the time of filing of the complainant, was also not produced by the complainant. It is further stated that the evidence of the complainant was closed and the trial Court, after recording the statement of petitioner under Section 342 Cr.P.C. granted opportunity to the petitioner to lead defence evidence, which was eventually produced by the petitioner and thereafter the matter was posted for final arguments. However, during the pendency of the complaint, respondent was permitted by the Court below to prosecute the complaint as legal heir of the original complainant. However, during the pendency of the complaint, respondent was permitted by the Court below to prosecute the complaint as legal heir of the original complainant. It is stated that the learned District Judicial Mobile Magistrate (Traffic ) Udhampur, heard the arguments on behalf of complainant an when counsel appearing for the petitioner informed the Court in respect of the inadmissibility of the evidence in respect of preliminary statement(s) of original complainant-Mohan Lal & one Ram Purshotam and the matter was posted for arguments on behalf of the petitioner, the respondent preferred an application on March 09, 2013 seeking to produce witness, namely, Ram Purshotam for cross-examination as well as the son of deceased complainant (Mohan Lal), namely, Vikas Gupta. It is stated that the said application preferred by the respondent was resisted by the petitioner by filing Objections/Reply to the same. 3. Learned counsel for the petitioner states that the trial Court while passing the order dated 06.04.2013 in an application filed by the respondent under Section 540 of the Code of Criminal Procedure, Svt. 1989 has thoroughly ignored the objections filed by the petitioner herein and has failed to appreciate the correct law while deciding the application filed by the respondent. In support of his contention, learned counsel has placed reliance on State of Gujarat & ors. Vs. Dilipbhai Shaligram Patil reported in 2006 (4) S.C.T. 536; Prof. V. M. Aniyan Vs. The University of Calicut and another reported in 2017 (2) Ker L.J. 837; M/s Kanoria Chemicals and Industries Ltd. Etc. Vs. U. P. State Electricity Board reported in 1997 (2) R.C.R. (Civil) 641; Union of India and ors. Vs. Narender Singh reported in 2005 (6) SCC 106 ; and Union of India Vs. G. R. Prabhavalkar reported in 1973 AIR (SC) 2102. 4. I have considered the rival contentions of the learned counsel for the parties and also gone through the trial Court file. Counsel for petitioner has reiterated the grounds taken in the petition. 5. Learned counsel for the respondent states that the instant petition has become infructuous, because the witnesses which were sought to be examined in pursuance to application filed by the respondent under Section 540 Cr.P.C. have been examined and even have been cross-examined by the counsel for the petitioner. 6. 5. Learned counsel for the respondent states that the instant petition has become infructuous, because the witnesses which were sought to be examined in pursuance to application filed by the respondent under Section 540 Cr.P.C. have been examined and even have been cross-examined by the counsel for the petitioner. 6. From the perusal of the record, it is evident that a complaint under Section 138 of the Negotiable Instruments Act was filed against the petitioner by one Mohal Lal with regard to bouncing of cheques, ten in number, for total amount of Rs.18,50,000/-. The statement of accused under Section 342 Cr. P.C was recorded on 14.02.2005. Thereafter, on 10.03.2005 statements of one Gurbachan Singh (Post Master) and K. K. Gupta, Branch Manager, PNB Bank Gandhi Nagar, Jammu were recorded. On 11.06.2005 statement of Gharu Ram was recorded and thereafter on 06.01.2006 statement of Dr. Abdul Rashid, Dy. Commissioner Excise was recorded. 7. From the perusal of the complaint, it further reveals that on 06.01.2006 evidence of the complainant was closed. On 06.09.2006, the statement of accused under Section 342 Cr. P.C was recorded. It further appears that on 22.09.2007 the complainant died. Thereafter an application for bringing on record the legal heirs of the complainant was recorded on 18.01.2008. 8. On 07.10.2008 statement of defense witness Puran Sharam was recorded. On 23.01.2009 statements of DWs Davinder Khajuria, Ripu Dhaman, Rashpal Singh and Kewal Krishan were recorded on 23.01.2009, 15.04.2009, 23.09.2009 and 25.08.2010 respectively. It further reveals that on 09.03.2013 an application under Section 540 Cr.P.C was filed for cross examining witness Ram Parshotam and legal heir (namely Vikas Gupta) of the deceased-complainant as his own witness. The court below allowed the application. The concluding para reads as under:- “For what has been discussed and stated above the power under S. 540 Cr PC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case and this being the primary duty of the criminal Court cannot be dubbed as “filling in lacuna in prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. In the case in hand I am of the humble opinion that cross examination of applicant being legal heir of original complainant and his witness Ram Parshotam is necessary for the just & fair decision of the case and the same cannot be termed as filling in the lacuna in prosecution case. But considering the fact that the above titled complaint is very old the applicant is directed to be remained present along with complainant’s witness Ram Parshotam on the next date for cross-examination and this exercise shall be completed within next 10 days. This application of the applicant/complainant is accordingly, disposed of and shall form part of main file.” 9. This order has been challenged in this petition, but during pendency of instant petition, this court on 29.06.2013 passed an interim order, the same reads as under:- “Mr. Pranav Kohli, learned counsel for the respondent submits that because of pendency of the case, petitioners are not allowing cross-examination of the witnesses. Trial Court is directed to direct the petitioner to cross-examine the witnesses. Learned counsel for the petitioner submits that the statement made by learned counsel for the respondent is in correct. Keeping in view the nature of controversy, it is directed that the trial Court shall ensure that the witnesses are examined and cross- examined without any further delay. The trial Court shall ensure that examination of the witnesses is conducted in the manner provided under law.” 10. In compliance to this order, PWs Ram Parshotam and Vikas Regra filed affidavits as examination-in-chief on 18.4.2013 and both have been cross examined on 19.5.2013. 11. Counsel for petitioner has stated that when basic order was incorrect, so these statements of witnesses have no legal value, so cannot be read as evidence. 12. Section 540 reads as under : “540. 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 essential to the just decision of the case. 13. Bare perusal of this section, it is evident that it consists of two parts. 13. Bare perusal of this section, it is evident that it consists of two parts. First part gives discretionary power to court in summoning 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. Second part of section is mandatory and it casts a duty upon the court to call and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. 14. Both the powers have to be exercised by with care and judiciously, so that criminal justice seems to have been done to both prosecution and accused. 15. In present case complaint u/s 138 of N.I. Act is with regard to dishonor of different cheques of total Rs.18,50,000/-, which is a huge amount. This complaint has been filed on 19.05.2003 since more than 15 years. 16. Discovery of truth is an essential purpose of any trial or enquiry. Examinations of material witnesses are essential. Our criminal administration of justice mandates that no one should be condemned unheard. After going through the order impugned, I am of the view that Magistrate has not passed the order after following the legal principle; perhaps he has never read section 540 Cr.P.C. in its true perspective. Because bare perusal of order, it is evident that court below has directed Ram Parshotam to remain present for cross-examination as his preliminary statement was already recorded. Preliminary statement cannot be termed as examination in chief, so firstly examination in chief is to be conducted in presence of accused and then cross-examination is to be conducted. So this finding of court below is not correct. Now, as in terms of this court order dated 29.6.2013, firstly examination in chief in the shape of affidavits and then cross examination of PWs Ram Parshotam and Vikas Regra, have been conducted by counsel for petitioner, so there is no need to set aside the impugned order on this ground only. The argument of counsel for petitioner that basic impugned order was incorrect, so these statements of witnesses have no legal value so cannot be read as evidence, is not tenable; because procedural law are handmaid tools for administration of justice and not to thwart the justice delivery system and further this court is not dealing in this regard. The argument of counsel for petitioner that basic impugned order was incorrect, so these statements of witnesses have no legal value so cannot be read as evidence, is not tenable; because procedural law are handmaid tools for administration of justice and not to thwart the justice delivery system and further this court is not dealing in this regard. Accused/petitioner has already prolonged the trial for more than 15 years. This petition in other sense has virtually become infructuous. 17. This petition is disposed of accordingly.