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2023 DIGILAW 567 (HP)

Deepak Jyoti v. Himachal Pradesh Gramin Bank

2023-12-20

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J. By way of present petition, invoking provisions of Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”), petitioner has assailed impugned order dated 13.1.2020, passed by Additional Chief Judicial Magistrate, Court No. 1, Sarkaghat, District Mandi, H.P., in case No. 509 of 2014, titled as Himachal Gramin Bank Vs. Deepak Jyoti, whereby application preferred by the petitioner under Section 311 Cr.P.C. for recalling the Bank Manager as a witness alongwith entire record of dishonor of cheque in reference, entire record of loan account of accused/petitioner and for producing certified copies of documents of recovery suit preferred by the Bank against the petitioner/accused in evidence, has been dismissed. 2. Petitioner in present case had obtained loan amounting to 9,73,250/- for purchasing a passenger bus on 26.8.2010. There was default in repayment of loan. For repayment of loan amount, petitioner/accused issued a cheque of 3,50,000/-, dated 16.9.2013 in favour of Himachal Gramin Bank. The said cheque was dishonored on 17.9.2013 due to “insufficient funds” in the account of accused/petitioner, which lead to filing of complaint by the Bank, after complying provisions of Negotiable Instruments Act, against the petitioner/accused. 3. CW-1 Ramesh Kumar (Manager) was examined as complainant’s witness on 6.9.2017 and in his cross-examination he had stated that he had not brought the record of loan account of petitioner/accused, but there was no request made on behalf of respondent/accrued at that time to defer the examination of the said witness for cross-examining him on production of record of loan account of the petitioner/accused. The witness was examined in the year 2017, whereas application under Section 311 Cr.P.C. was filed in November, 2018. 4. In the application, Bank Manager has been proposed to be summoned alongwith record of dishonor of cheque in reference and entire loan record of loan account of accused/petitioner. 5. The witness was examined in the year 2017, whereas application under Section 311 Cr.P.C. was filed in November, 2018. 4. In the application, Bank Manager has been proposed to be summoned alongwith record of dishonor of cheque in reference and entire loan record of loan account of accused/petitioner. 5. So far as record of dishonor of cheque is concerned, relevant documents related thereto including cheque have already been placed on record in evidence by the complainant and in case there is some document related thereto which is required to be considered for adjudication of the case and has not been placed on record by the complainant, it would be fatal for the complainant-Bank itself and there is no averments or material on record to show that in absence of any record related to dishonor of cheque, the petitioner/accused is going to be adversely affected. As a matter of fact, vague prayer has been made to produce the record of dishonor of chque, without disclosing that what will be that record, other than the record produced by the complainant in present complaint. Loan account of the petitioner/accused has also been proposed to be summoned. It is not in dispute that accused/petitioner had availed loan from the Bank and signing and issuance of cheque which has been dishonored for ‘insufficient funds’ in the account of petitioner/accused, is also not in dispute. 6. For adjudication of complaint under Section 138 of the Negotiable Instruments Act (for short the ‘NI Act’), production of loan account of the petitioner/accused is not necessary, as nothing has been stated in the application that how and in what manner the said record is going to facilitate the Court to arrive at just conclusion of the case. Certified copies of documents of recovery suit have been proposed to be lead in evidence on the ground that complainant has initiated two proceedings against the petitioner/accused to recover the same loan amount. Firstly, no documents have been placed on record with the application which are proposed to be led in evidence. Secondly, it is more than settled that complainant has right to file complaint under Section 138 of the NI Act on dishonor of cheque and simultaneously complainant can also file suit for recovery of amount. Firstly, no documents have been placed on record with the application which are proposed to be led in evidence. Secondly, it is more than settled that complainant has right to file complaint under Section 138 of the NI Act on dishonor of cheque and simultaneously complainant can also file suit for recovery of amount. Therefore, in present case filing of recovery suit and relevant record related thereto is not necessary for arriving at just conclusion in the complaint under Section 138 of the NI Act. 7. It is also noticeable that after recording statement under Section 313 Cr.P.C. accused/petitioner did not avail opportunity to lead any defence evidence and when case was listed for arguments, he filed present application after taking adjournment on two hearings. The Magistrate has given reasons for disallowing the application as mentioned in para 6 of the impugned order. 8. In Rajaram Prasad Yadav Vs. State of Bihar and Another, (2013) 14 SCC 461 , the Supreme Court has observed as under:- “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 re-examine 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. 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. 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. 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.” 9. In State (NCT of Delhi) Vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402 , the Supreme Court has held as under:- “27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. 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. 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, we do not find any ground to justify the recall of witnesses already examined.” 10. Taking into consideration the provisions of Section 311 Cr.P.C. and ratio of law laid down by the Supreme Court in the pronouncements referred supra and also for reasons assigned for rejecting the application in the impugned order discussed supra, I am of the considered opinion that there is no illegality, irregularity or perversity in the impugned order, warranting for exercise of powers under Section 482 Cr.P.C. to interfere in the impugned order and, therefore, present petition is dismissed being devoid of merits. 11. Needless to say interim order stands vacated. The parties, through their learned counsel are directed to appear before the Trial Court on 16.1.2024. Pending application(s), if any, also stand disposed of. Records of the Courts below be sent back immediately.