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2023 DIGILAW 763 (JHR)

Bihar Air Products Limited v. State of Jharkhand

2023-06-14

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : Heard the parties. 2. This Cr.M.P. has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to set aside the order dated 08.09.2022 passed by the Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No.148 of 2022 by which the learned Sessions Judge has set aside the order dated 16.07.2022 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in Complaint Case No.1794 of 2006. 3. The brief facts of the case is that the opposite party No.2 is an accused of Complaint Case No.1794 of 2006 pending in the court of Judicial Magistrate-1st Class, Jamshedpur wherein it has been contended that the complainant is a company incorporated under the Companies Act. The allegation against the opposite party No.2 is that while he was working as an In-charge of Account Section of the said company, he, in connivance with the co-accused persons, defalcated huge amount of money of the company and also fraudulently manipulated the entries in the books of accounts of the company and for wrongful gain of the opposite party No.2 and the opposite party No.2 is facing trial. When the complaint case was fixed for final argument, on 25.06.2022 a petition was filed by the petitioner inter alia with a prayer to- (i) place on record the written explanation submitted by the opposite party No.2 under Section 313 (5) Cr.P.C., (ii) for producing secondary evidence of the counter signed statutory audit report and (iii) to correct the numbering of the serial number of the exhibits in which there are some anomalies. 4. The trial court observed that the case is an old one of the year 2006. A detailed statement of the accused-opposite party No.2 has been recorded under section 313 of the Code of Criminal Procedure and the accused did not adduce any evidence in his defence. The trial court further observed that, since the petition is filed after much delay, hence, the same appears to be vague. A detailed statement of the accused-opposite party No.2 has been recorded under section 313 of the Code of Criminal Procedure and the accused did not adduce any evidence in his defence. The trial court further observed that, since the petition is filed after much delay, hence, the same appears to be vague. Regarding the second prayer, the trial court considered that the prayer is made after a lapse of 3.5 years and basically the ground of delay for the same was rejected and while considering the second prayer, the trial court has observed that vide order dated 31.07.2018, order was passed for calling for the document being the Counter-Signed Statutory Audit Report but the learned trial court has not mentioned anything in respect of third prayer regarding correction of the exhibit number of the exhibits. 5. Being aggrieved by the said order dated 16.07.2022 in Complaint Case No.1794 of 2006, the opposite party No.2 filed Criminal Revision No.148 of 2022 in the court of Sessions Judge, East Singhbhum, Jamshedpur and the learned Sessions Judge by the order dated 08.09.2022 set aside the said order dated 16.07.2022 passed in Complaint Case No.1794 of 2006 and remitted the matter back to the trial court with a direction to take on record the written explanation submitted by the opposite party No.2 under Section 313 (5) Cr.P.C. if any, and to give proper opportunity to the petitioner to produce secondary evidence if the complainant is not willing to produce the document and if the same is not available with the opposite party No.2, the court below may draw an adverse inference against the complainant in the matter and directed the trial court to correct the numbering of exhibits or avoiding future complication in the matter and also directed the trial court to conclude the trial of the case within three months from the date of receipt of the copy of the said order passed in Criminal Revision No.148 of 2022. 6. Learned counsel for the petitioner submits that the petition dated 25.06.2022 on behalf of the accused has been filed with the sole objective of delaying the disposal of the case and the accused cannot be permitted to improve upon his reply already rendered under Section 313 Cr.P.C. and the written statement sought to be brought on record tantamount to filing up lacuna in the case which cannot be allowed. It is then submitted that the learned trial court has rightly rejected the prayer of the opposite party No.2. Hence, it is submitted that the order dated 08.09.2022 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No.148 of 2022 be set aside. 7. Learned counsel for the petitioner further submits that the portion of the order by which the revisional court in the order dated 08.09.2022 passed in Criminal Revision No.148 of 2022 has observed that adverse inference be drawn against the complainant if the complainant is not willing to produce the counter-signed statutory audit report is uncalled for and illegal, primarily because of two reasons. Firstly as the said document is not in the possession of the complainant as has already been indicated in paragraph-15 of the complaint, the accused-opposite party No.2 and the co-accused persons, in order to destroy all the evidence of their misdeeds, have removed the same. Secondly because there was no material before the revisional court to suggest that the document concerned is in the custody of the petitioner. Moreover, keeping in view the limited jurisdiction of the revisional court, the revisional court ought not have passed an order which has got nothing to do with the order impugned before it. Hence, the observation for drawing adverse inference against the complainant is uncalled for and illegal and not sustainable in law, therefore, the said portion of the order be set aside. In support of his contention, learned counsel for the petitioner relies upon the judgment of Hon’ble Delhi High Court in the case of Ranjan Dwivedi & Another vs. C.B.I. through the Director General reported in 2007 0 Supreme (Del) 2607. 8. The learned P.P. defends the order dated 08.09.2022 passed by the Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No.148 of 2022. It is submitted by the learned P.P. that there is no dispute that the seriatim of the exhibits marked in the case being erroneous, the same is required to be corrected. So, there is absolutely no illegality regarding the third prayer of the opposite party No.2 which was allowed by the said order of the learned Sessions Judge. It is submitted by the learned P.P. that there is no dispute that the seriatim of the exhibits marked in the case being erroneous, the same is required to be corrected. So, there is absolutely no illegality regarding the third prayer of the opposite party No.2 which was allowed by the said order of the learned Sessions Judge. So far as the order passed by the Sessions Judge, East Singhbhum, Jamshedpur regarding directing the trial court to take on record the written statement submitted by the opposite party No.2 under Section 313 Cr.P.C. is concerned, learned P.P. submits that since Section 313 Cr.P.C. is for the benefit of the accused and the same has already been filed in the record, so, no component of delay is involved in accepting the same. Hence, the same also do not deserve any interference of this Court. Regarding the portion of the order by which the Sessions Judge has observed that the trial court may draw adverse inference against the complainant in case the complainant did not produce the counter-signed statutory audit report and the copy of the same is not with the opposite party No.2 is uncalled for because that is neither the prayer of the accused/opposite party No.2 before the learned trial court nor the trial court has in its order which was challenged in Criminal Revision No.148 of 2022, has made any such observation. Hence, it is submitted that the said portion of the order passed in Criminal Revision No.148 of 2022 dated 08.09.2022 be struck down. 9. Having heard the rival submissions made at the Bar and after going through the materials available in the record, so far as third prayer regarding the correction of seriatim of the exhibits is concerned, there is absolutely no dispute that the same is required to be corrected and the said portion of the order passed by the learned Sessions Judge, East Singhbhum, Jamshedpur do not warrant any interference. So far as the portion of the order of the learned Sessions Judge, East Singhbhum, Jamshedpur regarding the direction given to the trial court to take on record the written explanation submitted by the petitioner under Section 313 (5) Cr.P.C. is concerned, it is pertinent to mention here that it is a settled principle of law that Section 313 is for the benefit of the accused; yet it is also an important step in the trial as it makes the accused person aware about what the trial court deems to be incriminating circumstances, which the accused should answer. Under such circumstances if the opposite party No.2-accused person of the case intends to file written statement in addition to the statement under Section 313 Cr.P.C. which is already in the record and the said written statement has already been filed, hence, this Court do not find any illegality in the said portion of the order of the Sessions Judge, East Singhbhum, Jamshedpur directing the trial court to take on record the written explanation submitted therein under Section 313 Cr.P.C. but it is made clear that the same will be in addition to the statement already recorded under Section 313 Cr.P.C. of the accused and by filing the written statement, the statement recorded under Section 313 Cr.P.C. of the accused/opposite party No.2 will not be obliterated. 10. So far as the portion of the order of the learned Sessions Judge regarding drawing adverse inference against the complainant is concerned, this Court is of the considered view that the same is uncalled for. There is no material in the record to show that the ledger maintained by the complainant at the relevant time, counter-signed by the auditor, is in custody of the petitioner-company. The learned counsel for the petitioner categorically submits that the same is not in the custody of the petitioner-company. If the accused-opposite party No.2 intends to adduce secondary evidence of the same, if the complainant fails to produce the same, the accused- opposite party No.2 may be permitted to do so within a reasonable time to be fixed by the trial court. Keeping in view that the case is already an old one, the trial is to be concluded within three months from the date of receipt of copy of this order by the learned trial court. 11. Keeping in view that the case is already an old one, the trial is to be concluded within three months from the date of receipt of copy of this order by the learned trial court. 11. In view of the discussions made above, the portion of the order of the learned Sessions Judge, East Singhbhum, Jamshedpur dated 08.09.2022 passed in Criminal Revision No.148 of 2022 so far as it relates to drawing adverse inference against the complainant is set aside and the learned trial court is directed to give an opportunity to the petitioner to intimate the court categorically whether the said ledger was maintained by the complainant at the relevant time and if the same is in the custody of the petitioner, the petitioner be directed to produce the same but if the complainant fails to produce the same on the ground that the same is not in the custody of the petitioner, the opposite party No.2- accused be given an opportunity to adduce secondary evidence of the same and additionally the learned trial court is directed to accept the written statement of the accused/opposite party No.2 if any, in the record under Section 313 Cr.P.C. and to set right the seriatim of the exhibits. 12. This Cr.M.P. is disposed of with the aforesaid modification of the order dated 08.09.2022 passed by learned Sessions Judge, East Singhbhum at Jamshedpur in Criminal Revision No.148 of 2022 to aforesaid extent only. 13. In view of the disposal of the instant Cr.M.P., interim order, if any, stands vacated.