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Himachal Pradesh High Court · body

2018 DIGILAW 865 (HP)

TARA PATI v. MAMTA MALHOTRA

2018-05-10

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Aggrieved by the rejection of his application moved under Section 91 and Section 311 Cr.P.C. in complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'Act'), the accused/ petitioner has filed the instant petition. The parties shall be referred to as the complainant and the accused. 2. Brief facts of the case are that the complainant/respondent has filed a complaint under Section 138 of the Act against the petitioner/ accused alleging therein that the accused had issued a cheque No. 061559 dated 9.6.2011 of Rs.1,10,000/- towards the discharge of his legal debt and the same upon presentation was dishonoured on account of "funds insufficient". Thereafter, the notice was issued to the accused and since the accused did not pay the amount within the stipulated period, it constrained the complainant to file the aforesaid complaint. 3. The accused appeared before the learned trial Magistrate and pleaded not guilty and claimed trial. The complainant led evidence and thereafter the matter was fixed for evidence of the accused. But since no evidence was led, the same was closed vide order dated 22.3.2014. This order was assailed before this Court in Cr.MMO No. 125 of 2014 which was allowed and the aforesaid order was set-aside and the accused was afforded one more opportunity to lead evidence. 4. The accused still did not lead any evidence and rather filed an application under Section 311 Cr.P.C. for recalling the complainant in the witness box. However, the said application was dismissed by the learned trial Magistrate vide order dated 29.5.2014. Thereafter, the case was fixed for evidence of the accused and on 12.8.2016 the accused again moved another application under Section 91 read with Section 311 Cr.P.C., which has been ordered to be rejected vide impugned order dated 14.12.2017. Not only this, even the evidence of the accused has been ordered to be closed. 5. It is vehemently argued by Mr. Sumeet Raj Sharma, learned counsel for the accused that the learned trial Magistrate has failed to appreciate that the petitioner with the intent to put the document to the complainant had moved an application under Section 311 Cr.P.C. for recalling the petitioner since the document at the time of evidence was not traceable with him. Sumeet Raj Sharma, learned counsel for the accused that the learned trial Magistrate has failed to appreciate that the petitioner with the intent to put the document to the complainant had moved an application under Section 311 Cr.P.C. for recalling the petitioner since the document at the time of evidence was not traceable with him. However, since this application had already been dismissed by the learned trial Magistrate vide order dated 29.5.2014, therefore, in such circumstances, he had no option but to move another application under Section 91 read with Section 311 Cr.P.C. for directing the complainant/respondent to produce the original acknowledgement in her custody so that the same could be proved in accordance with law. I have heard learned counsel for the parties and have gone through the material placed on record. 6. At the outset, it may be observed that the accused has not effectively cross-examined the complainant's witnesses, more particularly, in line with the contents of the application which has now been filed. The Hon'ble Supreme Court in State (NCT of Delhi) vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402 has laid down the certain parameters for recall of witnesses under Section 311 Cr.P.C. and it has been specifically held that recall of a witness should not be a matter of course. The plea for recall for advancing justice has to be bonafide and has to be balanced carefully with other relevant considerations including uncalled for hardship to witnesses and uncalled for delay in trial. 7. Similar reiteration of law can be found in the judgment of the Hon'ble Supreme Court in State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762 . 8. The Hon'ble Supreme Court in its recent judgment in Ratanlal vs. Prahlad Jat and others, (2017) 9 SCC 340 , has specifically held that power under Section 311 Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. It has further been held that recall of a witness already been examined is not a matter of course and discretion given to the Court in this regard has to be exercised judicially to prevent failure of justice. It is apt to reproduce the relevant observations, which reads thus:- "16. It has further been held that recall of a witness already been examined is not a matter of course and discretion given to the Court in this regard has to be exercised judicially to prevent failure of justice. It is apt to reproduce the relevant observations, which reads thus:- "16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is 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". 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136 , this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) "17. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136 , this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) "17. "Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously". 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374 , this Court has considered the concept underlining under Section 311 as under: (SCC p.392, para 27) "27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind". 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402 , it was held thus: (SCC pp. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402 , it was held thus: (SCC pp. 404g-405a) "Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined". 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711 , this Court has held as under: (SCC p.719, para 38) "38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5- 1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed there against and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed". 9. Bearing in mind the aforesaid exposition of law, it would be noticed that in the cross-examination of the complainant's witnesses as conducted by the petitioner, there is not a slightest whisper that some writing had been executed on 13.3.2011 between the parties as was now sought to be got produced from the complainant while moving this application. Even if it is assumed that the document was misplaced as alleged by the accused, even then, nothing prevented him from cross-examining the witnesses regarding the facts that had led to the execution of the document. Having failed to do so, obviously then he cannot be held entitled to the benefit of the provisions of Section 311 Cr.P.C. 10. In this view of the matter, no fault can be found with the order of the Court with respect to the rejection of the application moved by the petitioner/accused under Section 94 read with Section 311 Cr.P.C. 11. However, as regards the subsequent part of the order whereby the evidence of the accused stands closed, the same cannot withstand the test of judicial scrutiny. Admittedly, the evidence of the accused/petitioner had not been closed and even on 14.12.2017 the case had only been fixed for pronouncing the order on the application and not for the evidence of the accused. Once that be so, obviously the learned Magistrate could not have closed the evidence of the accused. 12. Having said so, the present petition is partly allowed save and except the order as regards the rejection of the application under Section 91 read with Section 311 Cr.P.C., the same is upheld. However, insofar as the order relates to the closure of the evidence of the petitioner/accused, the same is set-aside. 12. Having said so, the present petition is partly allowed save and except the order as regards the rejection of the application under Section 91 read with Section 311 Cr.P.C., the same is upheld. However, insofar as the order relates to the closure of the evidence of the petitioner/accused, the same is set-aside. The parties through their counsel are directed to appear before the learned Magistrate on 28.5.2018 on which date the learned Magistrate shall fix only one last and final date for recording the entire evidence of the accused/ petitioner and for that purpose all necessary assistance shall be provided by the Court. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any.