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Himachal Pradesh High Court · body

2022 DIGILAW 769 (HP)

Tara Pati v. Mamta Malhotra

2022-11-30

AJAY MOHAN GOEL

body2022
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, filed under Section 482 of the Criminal Procedure Code (hereinafter to be referred as ‘Cr.P.C.’), the petitioner has challenged order dated 14.06.2022, passed by the Court of learned Chief Judicial Magistrate, Mandi, District Mandi, H.P., in terms whereof, an application filed under Section 311 of the Cr.P.C. by the applicant/accused for re-examination of the complainant has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are as under:- A complaint under Section 138 of the Negotiable Instruments Act has been filed by the respondent herein against the present petitioner, on the ground that a cheque issued by the petitioner to the respondent/complainant for an amount of Rs.1,10,000/-, dated 09.06.2011, in discharge of her legal liability, when presented for being honoured, was dishonoured on account of ‘insufficient funds’. The complaint was filed as far back as in the month of July, 2011. During the pendency of these proceedings, the application was filed by the petitioner herein under Section 91 of the Cr.P.C. read with Section 311 of Cr.P.C. for recalling the complainant in the witness box for her cross-examination on the grounds mentioned therein. The application was dismissed by learned Trial Court and petition preferred against the said dismissal before this Court also met the same fate. While dismissing the petition preferred by the present petitioner earlier before this Court, i.e. Cr.MMO No.4 of 2018, this Court in terms of its order dated 10.05.2018, inter alia, observed that in the cross-examination of the complainant’s witnesses as conducted by the petitioner, there was not even a slightest whisper that there was some writing executed on 13.03.2011 between the parties as was subsequently being sought to be produced from the complainant in terms of the application filed under Section 311 of the Cr.P.C. This Court further observed that even if it was assumed that the document was misplaced as alleged by the accused, then also nothing prevented the party from cross-examining the witnesses regarding the facts that had led to the execution of the document. On these basis, it was held that the petitioner was not entitled to the benefits of the provisions of Section 311 of the Criminal Procedure Code and the same was dismissed. 3. On these basis, it was held that the petitioner was not entitled to the benefits of the provisions of Section 311 of the Criminal Procedure Code and the same was dismissed. 3. After dismissal of this application, another application was filed by the petitioner again under the provisions of Section 311 of the Cr.P.C., seeking re-examination of the complainant now inter alia on the ground that the petitioner wanted to reexamine the complainant as new facts had come into existence to the effect that document dated 13.03.2011 stood executed between the complainant and the accused regarding completion of work and the cheque No.061559, drawn upon State Bank of India, which document was signed by the parties and copy thereof was already filed alongwith the earlier application preferred by the petitioner under Section 311 of the Cr.P.C. 4. In terms of impugned order dated 14.06.2022, this application has also been dismissed by learned Court below by holding that as an earlier application with similar prayer was dismissed by learned Trial Court and the order was upheld by the High Court, hence, the subsequent application having been filed at the stage of defence evidence was nothing but a mode to delay further proceedings in the case. Learned Trial Court also observed that prayer of the petitioner to produce alleged document before this Court was earlier declined which order was upheld by the High Court and the filing of the application was nothing but a mode to delay the proceedings. By returning these findings, the application stood dismissed with costs. 5. Learned counsel for the petitioner has argued that whereas earlier, the prayer of the petitioner was for re-examination of the complainant alongwith issuance of a direction to the complainant to produce original receipt, now the petitioner wanted to further cross-examine the complainant with regard to receipt of said document which was in possession of the petitioner. He further argued that this extremely important aspect of the matter has been overlooked by learned Court below, which renders the impugned order to be bad in law. Accordingly, a prayer has been made that the present petition be allowed by setting aside the order and by ordering re-examination of the complainant. 6. He further argued that this extremely important aspect of the matter has been overlooked by learned Court below, which renders the impugned order to be bad in law. Accordingly, a prayer has been made that the present petition be allowed by setting aside the order and by ordering re-examination of the complainant. 6. The petition has been resisted by learned counsel for the respondent, inter alia, on the ground that filing of the subsequent application after the rejection of an earlier one preferred under Section 311 of the Cr.P.C. was nothing but an abuse of the process of law and there was no perversity with the findings returned by learned Court below in terms of order dated 14.06.2022, as it was a matter of record that a similar application filed by the petitioner earlier was dismissed by learned Trial Court and the order of dismissal was upheld by the High Court. He further submitted that intent of the petitioner is to delay the adjudication of the complaint which was filed as far back as in the year 2011, therefore, the present petition deserves to be dismissed with costs. 7. I have heard learned counsel for the parties and have gone through the impugned order as well as other documents appended with the petition. 8. To say the least, the conduct of the petitioner indeed is deplorable, as not even prima facie, but ex facie, it is evident that filing of the application which has resulted in the passing of the impugned order was nothing but an abuse of the process of law. It is borne out from the record that the earlier application under Section 311 of the Cr.P.C. read with Section 91 thereof was filed by the petitioner after repeated opportunities to lead defence evidence. In these circumstances, learned Trial Court not only dismissed the application so preferred but also closed the evidence of the petitioner. This Court while upholding the order passed by learned Trial Court, in terms whereof, the application under Section 311 of the Cr.P.C. read with Section 91 of Cr.P.C. was dismissed, gave opportunity to the petitioner to lead evidence. In these circumstances, learned Trial Court not only dismissed the application so preferred but also closed the evidence of the petitioner. This Court while upholding the order passed by learned Trial Court, in terms whereof, the application under Section 311 of the Cr.P.C. read with Section 91 of Cr.P.C. was dismissed, gave opportunity to the petitioner to lead evidence. However, rather than leading complete evidence, the complainant again filed an application under Section 311 of the Cr.P.C., seeking further cross examination of the complainant by putting old wine into new bottle and by twisting the facts, whereas fact of the matter remains that reasoning for seeking further cross-examination of the complainant per se was same and similar. The Court is making this observation for the reason that when the petitioner as is stated in the application was in possession of the photocopy of the document concerned, then it is not understood as to why the complainant was not confronted with the same at the trial when the complainant presented herself for cross-examination. The contention of learned counsel that at that time this photocopy was not in the possession of the petitioner, does not holds any water because it has not come-forth from the petitioner as to how she actually came into possession of the photocopy thereof. Besides this, this Court is of the considered view that the provisions of Section 311 of the Cr.P.C. which confer upon the Court the power to summon material witness etc. cannot be permitted to be abused by either party to prolong the litigation or to fill the lacunae in their case. This provision can be resorted to only if the conditions prescribed in Section 311 of the Cr.P.C. are fulfilled and not otherwise. 9. In the present case, it cannot be said that the application filed under Section 311 of the Cr.P.C. was fulfilling the ingredients of said statutory provision and the intent of the applicant of filing the application after being unsuccessful in a similar application preferred earlier, was nothing but an abuse of the process of law. 10. Accordingly, as this Court does not finds any perversity in the order impugned and further as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, stand disposed of.