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2019 DIGILAW 477 (HP)

Prem Lal v. Mohinder

2019-04-26

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The appellant is the complainant, who aggrieved by the order of acquittal of the respondent passed by the learned trial Magistrate has filed the instant appeal. 2. The case of the appellant is that the respondent had hired his JCB machine and tipper for executing the road work awarded to the respondent, towards which a sum of Rs. 1,50,000/- became due and payable by the respondent. In order to discharge his liability, respondent on 15.4.2011 issued a cheque of Rs. 1,50,000/- drawn on Jogindra Central Co-operative Bank Limited, Solan in favour of the appellant with an assurance that the same would be honoured on presentment. However, when the appellant presented the said cheque through his banker, State Bank of Patiala, Tattapani, the same was returned to him vide memo dated 5.10.2011 with remarks "exceeds arrangement." The appellant thereafter got a legal notice issued to the respondent on 20.10.2011, which was duly received by him, however he still failed to make the payment constraining the appellant to file the complaint under Section 138 of the Negotiable Instruments Act. 3. The learned trial Magistrate summoned the respondent and thereafter put notice of accusation to him on 2.6.2012, in which the respondent pleaded not guilty and claimed trial. 4. In order to prove his case, the appellant examined as many as three witnesses in totality and closed his evidence. After closure of the appellant's evidence, statement of the respondent under Section 313 Cr.P.C. was recorded on 21.2.2013, in which he deposed that he had paid entire amount to the appellant and nothing remained to be paid to him. However, no evidence was led by him in defence. 5. The learned trial court after placing reliance on certain documents placed on record by the respondent as Mark A to Mark D and holding that the appellant has failed to prove his cause of action against the respondent vide order dated 28.2.2013 dismissed the complaint and acquitted the respondent. Hence, the instant appeal. 6. Along with appeal, the appellant has filed an application (Cr. MP No. 399/2013) under Section 311 read with Section 391 of the Criminal Procedure Code for placing on record additional evidence and proving the same in accordance with law by summoning the witnesses Roshan Lal and Puran Chand. 7. Hence, the instant appeal. 6. Along with appeal, the appellant has filed an application (Cr. MP No. 399/2013) under Section 311 read with Section 391 of the Criminal Procedure Code for placing on record additional evidence and proving the same in accordance with law by summoning the witnesses Roshan Lal and Puran Chand. 7. The respondent has contested the application by filing reply, wherein it has been averred that the documents as set out in the application in fact do not find mention in the complaint, therefore, the same be dismissed. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 9. It is more than settled that discretionary powers are essentially intended to ensure that every necessary and appropriate measure is taken by the court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned and also to ensure that no prejudice is caused to anyone. 10. Equally well settled is the preposition that power conferred under Section 311 of the Criminal Procedure Code should be invoked only to meet the ends of justice. This power has to be exercised only for strong and valid reasons and should be exercised with great care, caution and circumspection. The court has wide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision is not to be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 11. The scope of Section 311 of the Criminal Procedure Code came up for consideration recently before the Hon'ble Supreme Court in Manju Devi vs. State of Rajasthan and Another, 2019 Law Suit (SC) 1081, wherein it was observed as under:- 9. Section 311 Cr.P.C. reads as under:- "311. 11. The scope of Section 311 of the Criminal Procedure Code came up for consideration recently before the Hon'ble Supreme Court in Manju Devi vs. State of Rajasthan and Another, 2019 Law Suit (SC) 1081, wherein it was observed as under:- 9. Section 311 Cr.P.C. 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." 9.1. It needs hardly any emphasis that the discretionary powers like those under Section 311 Cr.P.C. are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 Cr.P.C. and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions vide Mohanlal Shamji Soni vs. Union of India, (1991) Supp 1 SCC 271, Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 , Mina Lalita Baruwa vs. State of Orissa and Others, (2013) 16 SCC 173 and Rajaram Prasad Yadav vs. State of Bihar and Others, (2013) 14 SCC 461 and Natasha Singh vs. CBI (State), (2013) 5 SCC 741 . In Natasha Singh vs. CBI (State), (2013) 5 SCC 741 , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter-alia, as under:- "8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial or any other proceedings under Cr.P.C. or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case." 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred 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 great caution and circumspection. The very use of words such as any Court, at any stage, or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. The very use of words such as any Court, at any stage, or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." 12. Tested on the aforesaid exposition of law, it would be noticed that the learned trial Magistrate had relied upon certain documents, which had simply been marked as Mark A to Mark D without the same having been duly proved on record. 13. That apart, the documents now sought to be proved on record are in fact the log books of the JCB and tipper with an intent to substantiate that the respondent had hired the vehicles belonging to the appellant and the cheque was issued towards discharge of valid and lawful consideration. 14. Once that be so, obviously it would only be in the interest of justice that the application is allowed and documents i.e. entries in the log books of JCB and tipper are taken on record and the appellant is granted an opportunity to prove these documents in accordance with law by summoning the witnesses, Roshan Lal and Puran Chand. Ordered accordingly. 15. Since the application under Section 311 read with Section 391 of the Criminal Procedure Code for placing on record additional evidence and proving the same in accordance with law stands allowed, as aforesaid, the impugned order dated 28.2.2013 is set aside and the case is remanded back to the learned trial Magistrate with a direction to decide the complaint under Section 138 of the Negotiable Instruments Act afresh after permitting the appellant to lead additional evidence and prove it in accordance with law. 16. Needless to say that the respondent shall also have corresponding right, after closure of right of the appellant, not only to lead his own evidence, but to formally prove the documents Mark A to Mark D. 17. 16. Needless to say that the respondent shall also have corresponding right, after closure of right of the appellant, not only to lead his own evidence, but to formally prove the documents Mark A to Mark D. 17. The parties to appear before the learned trial Magistrate on 13.5.2019, when he shall fix the date of recording of additional evidence on behalf of the appellant. 18. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Magistrate shall decide the matter uninfluenced by any observation made hereinabove. 19. The appeal is disposed of in the aforesaid terms, so also the pending applications, if any.