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2023 DIGILAW 598 (RAJ)

Sukhdev Singh v. State

2023-02-23

ASHOK KUMAR JAIN

body2023
ORDER : Mr. Ashok Kumar Jain, J. - The present Misc. Petition under Section 482 Cr.P.C. has been preferred by the petitioner aggrieved from the order dated 30.01.2020 passed by learned Additional Sessions Judge No.2, Sri Ganganagar in Criminal Revision No.82/2018 (CIS No.231/2018), whereby the order dated 31.07.2018 passed by the learned Additional Chief Judicial Magistrate, Sadulshahar, District Sri Ganganagar in Criminal Case No. 363/2009 (Firm Hansram Jagdish Rai v. Sukhdev Singh) against dismissal of the application under Section 311 of the Cr.P.C. was maintained in a criminal case under section 138 of the Negotiable Instruments Act. 2. Learned counsel for the petitioner submitted that on the basis of liberty granted vide order dated 15.12.2017 passed by a Coordinate Bench of this Court in S.B. Criminal Misc. Petition No.1481/2018 to summon documents at appropriate stage, present petitioner filed an application under Section 311 Cr.P.C. to summon bank manager, PNB Sadulshahar along with application to close bank account No.12128 and intimation regarding missing of cheques submitted by the petitioner. He further submitted that complainant is a grain merchant whereas the petitioner is an agriculturist. He submitted that just to transfer money a bank account was opened at the behest of respondent-2 complainant and the entire banking operation including custody of cheque book or other documents were maintained/kept by the complainant himself. The trial Court without appreciating the importance of liberty as referred above, dismissed the application. He further submitted that scope of Section 311 of the Cr.P.C. was well explained by the Hon'ble Apex Court in the matter of Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 and Swapan Kumar Chatterjee v. CBI (2019) 14 SCC 328 but the trial Court has failed to appreciate the valuable opportunity available to prove defence. He further submitted that the revisional Court without appreciating the law, has also dismissed the revision petition on the ground that the order under Section 311 of the Cr.P.C. is an interlocutory order and revision is not maintainable. He further submitted that a great prejudice is caused, if present petitioner is not allowed to led evidence by summoning the Bank Manager. 3. Aforesaid contentions were opposed by the learned Public Prosecutor as well as learned counsel for the respondent No.2. He further submitted that a great prejudice is caused, if present petitioner is not allowed to led evidence by summoning the Bank Manager. 3. Aforesaid contentions were opposed by the learned Public Prosecutor as well as learned counsel for the respondent No.2. Learned counsel for the respondent No.2 submitted that this petition has been filed at a belated stage i.e. just to delay the original case under section 138 NI Act. He further submitted that even the closure of bank account falls within scope of an offence under Section 138 N.I. Act and if there is any recorded intimation of missing of cheques before issuance of questioned cheque then same has to be brought on record on earlier occasions, but no such plea was ever raised against respondent No.2. He further submitted that this is just an abuse of process of law and filed with ulterior motives as there was no plausible defence with the present petitioner. 4. Heard learned counsel for petitioner, learned Public Prosecutor and learned counsel for respondent No.2. Perused the material available on record. 5. On perusal of the order dated 31.07.2018 indicates that case was fixed for defence evidence and an application under section 311 CrPC to summon Branch Manager, Punjab National Bank, Sadulshahar along with certain documents was filed by accused-petitioner. The object was to prove that bank account No.12128 was closed and intimation regarding missing cheques was already given to bank. The trial Court opined that if petitioner wanted to get information then, the same can be obtained under the Right to Information Act but the same was not obtained, hence the application was dismissed. The record further indicates that Virendra Kumar S/o Hansraj was examined as P.W. 1 but not a single question was asked regarding the defence raised to summon documents/ witness under Section 311 of the Cr.P.C. meaning thereby, when defence of closure of account or missing of cheques including misuse of cheque was not raised during cross examination of P.W. 1, then any defence raised at any subsequent stage can certainly be termed as after thought. This Court is of the opinion that in cases under section 138 NI Act, which is also a quasi civil proceedings, all suggestion or question regarding defence of accused must be put up in cross examination of the principal witness of prosecution/complainant. 6. This Court is of the opinion that in cases under section 138 NI Act, which is also a quasi civil proceedings, all suggestion or question regarding defence of accused must be put up in cross examination of the principal witness of prosecution/complainant. 6. Herein, the observation of trial court suggest that a period of ten years has already been lapsed thus the application so filed cannot be treated as bonafide. The documents submitted to support the present petition indicates that an application under Section 91 Cr.P.C. was dismissed by the trial Court but partially allowed by the revisional Court. This Court vide order dated 15.12.2017 while dismissing the Misc. Petition has given liberty to petitioner for renewal of his prayer for summoning the document at an appropriate stage of the trial. The documents as referred during the course of argument further indicate that an application under Section 6 of the RTI Act was also filed by the present petitioner but the bank concerned informed that due to inadequate and incorrect details of bank account number, required information cannot be provided. The reply of bank further fortifies the contentions raised by learned counsel for the respondent No.2 that this petition has been filed just to delay the matter. Present petitioner was examined as DW-1 before the learned trial Court and his cross examination indicates that he admitted the fact of opening of bank account, transactions and also the closure of the said account in the year 2001. The issues raised are still not part of deposition made before the trial Court. It is not possible for this Court to examine the evidence led by the parties on merits but looking to the nature of dispute under Section 138 N.I. Act, certainly pendency of more than 10 years is highly impermissible. 7. The principles of law laid down by the Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh (Supra) and Swapan Kumar Chatterjee v. CBI (Supra), suggests that whenever it was found that application has been filed with an object and it was found that it is an abuse of process of law then it is duty of the Court that such type of applications should not to encouraged. Hence, these two judgments are not helpful for the petitioner to buttress his contentions. Hence, these two judgments are not helpful for the petitioner to buttress his contentions. The original case was pending for more than 10 years, therefore, in my opinion, the trial Court was justified in dismissal of application for summoning the witness and documents. 8. Thus, the Misc. Petition under Section 482 Cr.P.C. filed on behalf of petitioner is devoid of merit and liable to be dismissed. Hence same is dismissed.