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2019 DIGILAW 194 (HP)

Mohinder Singh Dudharta v. Bal Krishan Rawat

2019-02-27

VIVEK SINGH THAKUR

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JUDGMENT : VIVEK SINGH THAKUR, J. 1. This petition has been preferred against the impugned order dated 27.4.2018 passed by learned Judicial Magistrate 1st Class, Court No. 2, Rohru, H.P. in Complaint Case No. 69/3 of 2014 filed under Section 138 of the Negotiable Instruments Act, whereby trial Court, in an application filed on behalf of complainant/respondent to place additional documents on record, has permitted to produce the documents. 2. Impugned order has been assailed on the ground that application preferred by complainant/respondent was filed under Order 7 Rule 14 (3) of the Code of Civil Procedure read with Section 151 C.P.C, whereas complaint filed under the Negotiable Instruments Act is to be governed by the provisions of Criminal Procedure Code (Cr.P.C.) and thus the impugned order passed by the trial Court is without jurisdiction, as he was not competent to entertain the application for placing on record additional documents under the provisions of CPC in a Criminal Complaint. It is further submitted that it is not a case of mentioning wrong provision of law, but is a case of applying Civil Procedure Code in a Criminal Case. 3. Learned counsel for the respondent has supported the impugned order for the reasons assigned therein and has relied upon pronouncement of the Apex Court in Mina Lalita Baruwa Vs. State of Orissa and others, (2013) 16 SCC 173 for explaining the powers of Court under Section 311 Cr.P.C. and has also referred a judgment of Co-ordinate Bench of this Court in case titled Anil Chauhan Vs. Education Society, Mandi reported in Latest HLJ 2014 (HP), 1080, wherein in almost identical case, order of trial Court allowing the application under Section 311 Cr.P.C. has been upheld. 4. So far as contention of petitioner that trial Court has applied Civil Procedure Code in a Criminal Complaint, is not tenable for the reasons that at the time of passing impugned order, trial court has specifically dealt with this issue and has observed in the impugned order that Court does not have power to allow an application under Order 7 Rule 4 C.P.C in a complaint case and the provisions of C.P.C. are not applicable therein. Thereafter, and rightly so, he has returned the findings that the application cannot be dismissed solely on the ground that wrong provisions of law has been mentioned. 5. Thereafter, and rightly so, he has returned the findings that the application cannot be dismissed solely on the ground that wrong provisions of law has been mentioned. 5. It is not a case that Court was not empowered at all even under Cr.P.C. to allow the prayer. In the cause title of the application, placed on record, the application has been stated to have been filed under the provisions of C.P.C. but it is not a case that the trial Court was not empowered to allow to produce additional documents on record under Cr.P.C. The trial Court has rightly observed that Section 311 Cr.P.C. deals with the power of the Court to summon material witness or examine a person present in the Court at any stage of inquiry. The Apex Court in Mina Lalita Baruwa's case supra has held that ingredients of Section 311 Cr.P.C. empowers the trial Court to arrive at just decision to resort to an appropriate measure befitting the circumstances in the matter of examination of witnesses. 6. Co-Ordinate Bench of this Court in Anil Chauhan's case supra has held as under: "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 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? 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. 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. 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 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." 14. 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. 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." 7. Therefore, it is well within competence of the trial Court to cause or allow production of documents exercising the power under Section 311 Cr.P.C. to arrive at just decision. Hence, trial Court has not committed any mistake by considering the application, filed for placing additional documents under Section 311 Cr.P.C. despite having been filed mentioning the provisions of CPC. 8. In present case it is case of the complainant/respondent that an amount of Rs. 2,00,000/- was taken by the petitioner earlier and to establish the said liability, cheque dated 30.10.2012 of PNB, Rohru was issued by him and when the same was presented in the bank, it was dishonoured for want of sufficient funds and thereafter a legal notice was issued to the accused/petitioner, who expressed his inability to make payment and had requested the complainant to accept a new cheque, which is subject matter of the complaint. In these circumstances, complainant had intended to produce earlier cheque dated 30.10.2012 along with dishonor memo of the same before the trial Court along with a writing alleged to be executed by the accused/petitioner admitting the receipt of Rs. 2,00,000/- from the respondent/complainant. In reply to the application, issuance of notice by the complainant/respondent has been admitted, with further averments that the said notice was replied by the accused/petitioner, by stating therein that there was no liability of the accused/petitioner towards complainant/respondent. These are allegations and counter allegations by the complainant and the respondent. 2,00,000/- from the respondent/complainant. In reply to the application, issuance of notice by the complainant/respondent has been admitted, with further averments that the said notice was replied by the accused/petitioner, by stating therein that there was no liability of the accused/petitioner towards complainant/respondent. These are allegations and counter allegations by the complainant and the respondent. Trial has not completed yet, therefore, in order to arrive at a just conclusion, in the facts and circumstances explained herein above and also law established by the Apex Court and propounded by Co-ordinate Bench of this Court, I find that the trial Court has not committed any illegality, irregularity or perversity in passing the impugned order. 9. In view of above discussion, impugned order is upheld and the petition is dismissed. Parties are directed to appear before the trial Court on 18th March, 2019.