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2022 DIGILAW 815 (ALL)

Priti Pandya v. State of U. P.

2022-05-20

UMESH CHANDRA SHARMA

body2022
JUDGMENT : UMESH CHANDRA SHARMA, J. 1. Heard Sri Dheeraj Singh (Bohra), learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record. 2. The applicant-accused in Criminal Complaint under Section 138 N.I. Act has preferred this application under Section 482 Cr.P.C. to quash the order dated 22.10.2021, passed by Sri Vijay Kumar Agrawal, Presiding Officer of Additional Court No. 03, Gautam Budh Nagar, by which he allowed the complainant’s application under Section 311 Cr.P.C. and permitted the production of three documents on record and summoned the Post Office’s Clerk and Advocate Sri Braj Bhushan Pal for deposition. 3. In brief, facts of the case are that M/s. Tanya Buildcon (India), Private Limited, has filed a complaint under Sections 138 & 141 N.I. Act, against M/s. Gujrat Isotop Pvt. Ltd. and its Director/M.D. Miss. Priti Pandya before the C.J.M. Gautam Budh Nagar, bearing No. 16712 of 2010, which was contested by the opposite parties. 4. In this complaint case, evidence were recorded and documents were already produced by the complainant. Relevant parts of the order-sheets of the lower court has been produced by the applicant, which discloses that on 14.04.2021, the case was fixed for argument and the Court below heard the oral argument and also directed to produce the written argument. 5. The order-sheet dated 22.09.2021 discloses that the counsel for the accused raised some preliminary objections regarding maintainability of the complaint that the alleged legal notice in not signed by the concerned advocate and that no receipt regarding authorization for filing the complaint by the Director Sri Deepak Agrawal has been produced. He also argued that Sri Deepak Agrawal has produced his statement under Section 200 Cr.P.C. on affidavit, which is not duly verified. 6. In view of these initial objections of the opposition, the court fixed a date for their disposal. Thereafter an Application U/s 311 Cr.P.C. was moved to summon the Official of the Postal Department and the aforesaid counsel, who had sent the notice. Thereafter the order in question was passed after taking up the objections of the opposition and hearing the parties. 7. Thereafter an Application U/s 311 Cr.P.C. was moved to summon the Official of the Postal Department and the aforesaid counsel, who had sent the notice. Thereafter the order in question was passed after taking up the objections of the opposition and hearing the parties. 7. The applicant has taken mainly this ground to quash the impugned order that the legal notice filed with the affidavit dated 09.08.2010 was not signed by the advocate, who had dispatched the same to the applicant and that the Postal Receipt was invisible to ascertain the post office and year. The resolution/memorandum authorizing Mr. Deepak Agrawal for filing the complaint was not filed as primary document with the complaint. According to him the lower court perused the record and found that the list of documents does not contain the receipt of dispatch of legal notice and resolution of the Company and the legal notice does not contain the signature of the advocate. According to the applicant thus by accepting the application u/s 311 Cr.P.C. the court has provided an opportunity to fill up the lacuna to the complainant, hence the present application. 8. At the very outset it would be proper to state something about the Negotiable Instruments Act, 1881. 9. The Negotiable Instruments Act, 1881 was amended with effect from 01.04.1989 and the maximum term of punishment of one year has been enhanced up to two years and the period of notice of dishonor of cheque has been reduced from 30 days to a period of 15 days with effect from 06th February, 2003. The scheme of N.I. Act primarily to provide an additional criminal remedy over and above the civil remedy available under the Act. 10. Section 138 of the N.I. Act creates a new offence when a cheque is returned by the Bank unpaid. Section 139 casts a rebuttable presumption that a holder of the cheque has received, the same towards discharge of liability. The Section 140 precludes the drawer from the pleadings with that he had no reason to believe that the cheque would be dishonoured. As per Section 142, the offence has been made cognizable on the basis of written complaint. Section 142 (B) prescribes a period of one month for filing a complaint from the date when the cause of action arises. In the case of Goal Plast Limited vs. Chico Urmila ‘D’ Souza, 2003 Cri. As per Section 142, the offence has been made cognizable on the basis of written complaint. Section 142 (B) prescribes a period of one month for filing a complaint from the date when the cause of action arises. In the case of Goal Plast Limited vs. Chico Urmila ‘D’ Souza, 2003 Cri. L.J. 1723, Hon’ble Supreme Court has held that the new enactment of 1988 has been introduced with intention to discourage people for not honouring their commitment by way of payment of cheque. To form an offence under Section 138 of N.I. Act, mens-rea is not essential ingredient of a criminal offence. The partners of the firm can be prosecuted without impleading firm as an accused. He can be convicted if he was In-charge of a responsible Firm for the conduct of the business of the firm. The Manager of the Company in whose favour the cheque was issued can file complaint for dishonour of the cheque M/s Mohan Lal Khem Chandra vs. Pawan Kumar Mohanka, 1996 Cri. L.J. 2927. 11. Under Section 138 (B), the payee is under the statutory obligation to make a demand by giving a notice. 12. In the case of Raja Kumarian vs. Subharama Naydu, AIR 2005 SC 109 , it is held that once the notice is dispatched, the part of the complainant is over and next depends what the sendee does. Once the notice is dispatched by registered post on correct address of the sendee, the presumption would arise in favour of the senders that the notice was duly served, unless the presumption is rebutted by the necessary evidence. 13. In the case of N. Rangachari vs. B.S.N.L. Limited, AIR 2007 SC 1682 , it is held that if named Directors were In-Charge and responsible to the Company for the conduct of the business, complaint against the Directors is maintainable and can not be quashed. The Director of the Company by courageously liable for acts of the Company. 14. The Hon’ble the Supreme Court in the case of M.M.T.C. vs. Medchal Chemicals and Pharma (P) Ltd. AIR 2002 SC 182 , held that the complaint filed in the name and on behalf of the Company by its employee without necessary authorization is maintainable. Want of authorization may be rectified even at a subsequent stage. 15. 14. The Hon’ble the Supreme Court in the case of M.M.T.C. vs. Medchal Chemicals and Pharma (P) Ltd. AIR 2002 SC 182 , held that the complaint filed in the name and on behalf of the Company by its employee without necessary authorization is maintainable. Want of authorization may be rectified even at a subsequent stage. 15. In this matter the complaint was filed in the year 2010 and since then the complaint is pending for disposal. Since the whole order-sheet has not been produced before the Court, therefore, this Court can not say as to which party is responsible for delaying the complaint, but it is very strange that when after taking all evidence, the learned lower trial court was proceedings for deciding the case after hearing the oral argument and taking written arguments of the parties, why the preliminary objections were raised by the applicant-accused. The learned lower trial court was competent enough to decide the objections raised by the applicant-accused finally with the judgment of the case. It is also strange that why these preliminary objections were not raised at the initial stage of the case by the applicant-accused. This Court is of the opinion that the learned trial court, should have decided the case on merit taking all the objections of the accused. 16. There is no doubt that in the cases relating to Section 138 N.I. Act, the Court can entertain an Application under Section 311 Cr.P.C. at any state of the inquiry, trial or other proceedings suo-motoor on the application of either party if the recall of the witness for examination-in-chief, cross examination or re-examination or summoning of new witness and taking additional documentary evidence appears to be essential for the just decision of the case. When the complainant moved the Application U/s 311 Cr.P.C. the same was allowed partly and the impugned order was passed and the learned Trial Court permitted for production of all the three documents on record and summoned Post Office’s Clerk and Advocate Sri Braj Bhushan Pal to adduce the evidence. The applicant-accused has only one objection that the learned trial court has not exercised the jurisdiction properly, but by allowing the application, it has provided an opportunity to the complainant to fill-up the lacuna of the case. The applicant-accused has only one objection that the learned trial court has not exercised the jurisdiction properly, but by allowing the application, it has provided an opportunity to the complainant to fill-up the lacuna of the case. This Court is of the opinion that all the three documents were necessary to be summoned and kept on record and if it was not clarified that from which Post Office, the notice was sent then summoning of the Post Office’s Clerk and summoning of the aforesaid Advocate Sri Braj Bhushan Pal, who is alleged to be sender of the notice appears to be essential for the just decision of the case. 17. The second part of the Section 311 of C.P.C. casts duty upon the Court to summon, examine and recall and reexamine any such person, if his evidence, appears to be essential for the just decision of the case. 18. In the Case of R.B. Mithani vs. State of Maharashtra, AIR 1971 SC 1630 , the Hon’ble Supreme Court has held that additional evidence summoned must be necessary not because, it would be impossible to pronounce judgment but also because there would be failure of justice without it. Though the power must be exercised sparingly and only in suitable case but once such action is justified, there is no restriction on the kinds of evidence, which may be received. It may be formal or substantial in nature. 19. In the Case of State of Haryana vs. Ram Prasad, 2006 Cri. L.J. 1001, the Punjab & Haryana High Court held that where the examination and re-examination of the witness is essential for the just decision of the case, it is obligatory of the Court to summon such a witness. 20. The Orissa High Court in the Case of Nira vs. State of Orissa, 2008 Cri. L.R. 1315, held that this power can be exercised by the Court even at the state of preparation of the judgment. 21. In the Case of State of Sikkim vs. Thukchuk Lachungpa, 2005 Cri. L.R. 201, the Sikkim High Court has held that this power can be exercised even though at the earlier stage of the trial, the Court has rejected such application. 22. In the Case of Rama Paswan vs. State of Jhharkhand, 2007 Cri. 21. In the Case of State of Sikkim vs. Thukchuk Lachungpa, 2005 Cri. L.R. 201, the Sikkim High Court has held that this power can be exercised even though at the earlier stage of the trial, the Court has rejected such application. 22. In the Case of Rama Paswan vs. State of Jhharkhand, 2007 Cri. L.J. 2750, the Hon’ble Supreme Court has held that it would not be improper, the exercise of the power 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, inquiries and trials under the Court and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or inquiry. 23. In the Case of Ismail Baba Saheb vs. A.A. Hulagen, 1997 Cri. L.J. 1804, the Karnataka High Court, has held that where the production of the document and the summoning of the witness is necessary for the just decision of the case, the rejection of the application on the ground that document has not been produced from proper custody is not proper. 24. In the Case of Raju vs. State of Madhya Pradesh, 2002 Cri. L.J. 2367, the Madhya Pradesh High Court has held that where the documents filed with the Charge-sheet have not been proved, important documents relevant for the just decision of the trial have not been filed, the Court would direct their production exercising of power under Section 311 Cr.P.C. and Section 165 of Evidence Act. 25. In the Case of Raj Deo Sharma vs. State of Bihar, AIR 1999 SC 3524 , the Hon’ble Supreme Court has held that once it is found that the evidence is essential for the just decision of the case, the witness can be recalled at any time before pronouncement of the judgment, the time factor would not come in the way. 26. In the case of Mohan Lal Sham Ji Soni vs. Union of India, 1991 Cri. L.J. 1521, Supreme Court, the Hon’ble Supreme Court has held that an inquiry or trial in a criminal proceedings comes to an end or reaches its finality when the order or judgment is pronounced and until then the Court has power to use this Section. 27. L.J. 1521, Supreme Court, the Hon’ble Supreme Court has held that an inquiry or trial in a criminal proceedings comes to an end or reaches its finality when the order or judgment is pronounced and until then the Court has power to use this Section. 27. In the Case of Rajendra Prasad vs. Narcotic Cell Delhi, AIR 1999 SC 2292 , the Hon’ble Supreme Court has held that it can not be laid down as legal preposition that the Court can not exercise the power of re-summoning any witness, if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered latches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even re-call any witness at any stage of the case, if the Court considers it necessary for a just decision. 28. As already said that there are two parts of the Section 311, in this context, the Hon’ble Supreme Court in the case of Jamat Raj vs. State of Maharashtra, AIR 1968 SC 178 has held that the user of “May” in first part “Shall” in second shows, that when the first part is discretionary, second part is obligatory. 29. In the Case of Mohan Lal (Supra) the Hon’ble Supreme Court has also held that the power to summon and examine any witness may be exercised at the stage, opportunity however is to be given to the parties to rebut the evidence. 30. In this case, the accused-appellant has certainly power to cross-examine the witness summoned and file documentary evidence in rebuttal, which have been permitted by the Court to keep on record. 31. The applicant-accused is of the view that by allowing the application under Section 311 Cr.P.C. and by summoning the witnesses and keeping the documentary evidence on record, the accused-applicant have been prejudiced. In this respect a judgment of Bombay High Court is relevant, where in the Case of Popat Lal and Others vs. State of Maharashtra, 2002, Cri. L.J. 794, the Bombay High Court has held that Section 311 Cr.P.C. is not granted only for the benefit of the accused and it will not be improper exercise of power of the Court, if the Court summons a witness only because the evidence will support the prosecution case and not the defense case. 32. L.J. 794, the Bombay High Court has held that Section 311 Cr.P.C. is not granted only for the benefit of the accused and it will not be improper exercise of power of the Court, if the Court summons a witness only because the evidence will support the prosecution case and not the defense case. 32. In the Case of P. Chagu Lal Daga vs. M. Sanjay Show, 2004 SCC (Criminal) 183, the Hon’ble Supreme Court has held that in a case relating to N.I. Act that when the prosecution wanted to produce the Postal Receipt to prove the service of notice on the accused in a proceeding under Section 138 of the N.I. Act, the Trial Court can admit it even after close of the case. 33. In the case of Chhanda Debi Varma vs. Keshab Banik, 2005 Cri. L.J. 2503, the Guwahati High Court has held in a case relating to dishonour of cheque, wherein the complainant placed two letters on record issued to him by the accused after the examination of the prosecution witness, the letters were necessary to meet the ends of justice, therefore, the prosecution witnesses were called for to prove those letters. 34. On the basis of the above discussions and in view of the judgments of Hon’ble Supreme Court and other High Courts, this Court is of the opinion that in this case exercise of powers by the learned Trial Court under Section 311, for passing impugned order and for summoning the witnesses and to permit the complainant to produce the documentary evidences as noted above, was necessary for just decision of the trial and for the ends of justice, therefore, so far as the merit of the case (Application U/s 482 Cr.P.C.) is concerned, it has no merit. 35. It is also a question to be decided by the Court as to whether the impugned order can be challenged under Section 482 Cr.P.C. or not. 36. In the following cases it is held that Order summoning or refusing to summon witnesses under Section 311 Cr.P.C. is an interlocutory order within the meaning of Sec. 397 (2) Cr.P.C. as it does not decide any substantive right of litigating parties. Hence no revision lies against such order. 36. In the following cases it is held that Order summoning or refusing to summon witnesses under Section 311 Cr.P.C. is an interlocutory order within the meaning of Sec. 397 (2) Cr.P.C. as it does not decide any substantive right of litigating parties. Hence no revision lies against such order. See: (i) Ajai Dikshit vs. State of U.P. and Another, 2011 (75) ACC 388 (All) (ii) Sethuraman vs. Rajamanickam, 2009 (65) ACC 607 (SC) (iii) Hanuman Ram vs. State of Rajasthan and Others, 2009 (64) ACC 895 (SC) (iv) Asif Hussain vs. State of U.P. 2007 (57) ACC 1036 (All) 37. The Hon’ble Supreme Court in the Case of Girish Kumar Suneja vs. CBI, AIR 2017 SC 3620 (three Hon’ble Judges’ Bench), has held that when the Section 397 (2) Cr.P.C. prohibits interference in respect of the interlocutory orders, Section 482 Cr.P.C. can not be availed to achieve the same objective. 38. On the basis of above discussions, this Court is of the considered view that the present petition/application u/s 482 Cr.P.C. filed the accused-applicant against the impugned order is devoid of merits and is not maintainable. Hence, the present Application U/s 482 Cr.P.C. is accordingly dismissed.