Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 328 (HP)

Ravi Kumar v. Shakti Cholia

2025-03-10

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioner has filed the present revision petition against the order dated 04.10.2024, passed by learned Chief Judicial Magistrate, Una, District Una. It has been asserted that the respondent filed a complaint against the petitioner for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (N I Act). The petitioner filed anapplication under Section 94 read with Section 348 of Bharatiya Nagarik Suraksha Sanhita ( BNSS) for tendering in evidence a certified copy of the complaint filed by the petitioner against the respondent for the commission of offences punishable under Sections 420, 465, 468, 471, 342 & 506 of Indian Penal Code (IPC). Learned counsel for the respondent had cross-examined the petitioner about his complaint. The document is relevant and necessary to decide the dispute. The complaint mentions that the respondent and her associates had obtained the cheque forcibly. The petitioner wanted to tender the certified copy of the complaint, which is per se admissible, and no witness was required to be summoned to prove the complaint. No prejudice would be caused to the other side. The learned Trial Court dismissed the application on the ground that it was filed at a belated stage. The order passed by the learned Trial Court is arbitrary, irrational and mechanical. The proof of complaint is necessary to establish that the respondent had obtained the cheque in question forcibly. Therefore, it was prayed that the record of the learned Trial Court be called and the petitioner be permitted to bring the complaint on record. 2. I have heard Mr. Sunil Mohan Goel, learned Senior Counsel, assisted by Mr. Vipul Sharda, learned counsel for the petitioner. 3. Mr. Sunil Mohan Goel, learned Senior Counsel for the petitioner submitted that the learned Trial Court erred in dismissing the application. The document is highly relevant to prove the plea taken by the petitioner. The petitioner has a right to rebut the presumption of consideration attached to the cheque under Section 139 of the Negotiable Instruments Act. No prejudice shall be caused to the other side. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 5. No prejudice shall be caused to the other side. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 5. The accused filed the revision against an order dismissing an application for leading additional evidence. It was held by this Court in Vishwa Narayan Goswami Vs. Ram Rattan Sharma, Latest HLJ 2009 (1) 552, that an order dismissing an application for leading additional evidence is an interlocutory order, which is not amenable to the revisional jurisdiction. It was observed:- “7. The first question staring at the face is whether the order passed under Section 311 of the Code of Criminal Procedure by the learned trial Magistrate is an "interlocutory order" and not amenable to the revisional jurisdiction. My answer to it is in affirmative. The order passed by the court under Section 311 Cr.P.C. is an "interlocutory order" and revision against it is barred under Section 397(2) of the Code of Criminal Procedure. 8. In fact the word "interlocutory order" has not been defined in the Code. However, in Amar Nath's Case 1978 SCC (Cri) 10 , the Supreme Court held that the word "interlocutory order" in Section 397(2) of the Code has been used in a restricted sense and not in a broad or artistic sense and it merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights of the parties but any order which substantially affects the right of the parties can not be said to be an "interlocutory order". 9. In Madhu Limaye's Case 1980 SCC (Cri) 695 , a three-judge Bench of the Supreme Court held that an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an "interlocutory order". 10. Further in Rajendra Kumar Sita Ram Pande vs. Uttam and another, 1999 (3) SCC 134 , the apex court took note of the above proposition of law and held that the above being the position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted. 11. 10. Further in Rajendra Kumar Sita Ram Pande vs. Uttam and another, 1999 (3) SCC 134 , the apex court took note of the above proposition of law and held that the above being the position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted. 11. Yet in another case K.K. Patel vs. State of Gujarat, (2000) 6 SCC 195 , while relying upon Rajendra Kumar Sita Ram Pande's case supra, held that it is well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, the feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings if so any order passed on such objection would not be merely interlocutory in nature as envisaged under Section 397(2) of the Code. 12. In the present case, the order passed on the application under Section 311 Cr.P.C. by the learned trial court is neither an intermediate nor a quasi-final order and further the proceedings in the main case against the accused petitioner would not culminate even on acceding to the request of the respondent, therefore the order impugned in revision petition by the accused before the learned Sessions Judge is an "interlocutory order" and was not amenable to his revisional jurisdiction. 6. It was held by the Hon’ble Supreme Court of India in Sethuraman vs Ratamanickam, (2009) 5 SCC 153 , that an order refusing to call the documents and lead additional evidence is interlocutory. It was observed:- “5. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and the other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), the revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.” 7. This judgment was followed by the Andhra Pradesh High Court in M. Koteswara Reddy v. State of A.P., 2019 SCC OnLine AP 318 and it was held that an application under Section 391 of Cr.P.C. is interlocutory and no revision lies against an order dismissing such an application. It was observed:- “ 7. Now, it is well-settled law that an order summoning a witness under Section 391 Cr. P.C. summoning of documents under Section 91 Cr. P.C. etc., are all pure and simple interlocutory orders. On the same analogy, the petitioner filed under Section 391 Cr. P.C. in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. Section 397(2) Cr. P.C. imposes a clear bar to exercise the power of revision under Section 397(1) Cr. P.C. in respect of interlocutory orders. xxx 9. In view of the dictum laid down in the aforesaid judgment of the Apex Court that revision filed under Section 397 (1) Cr.P.C. against an interlocutory order is not maintainable in view of the bar engrafted under Section 397 (2) Cr.P.C., this revision, which is preferred against an interlocutory order passed under Section 391 Cr.P.C., to recall PW.1 for cross-examination, is also not maintainable.” 8. Delhi High Court also took a similar view in Mohd. Hasan v. State, 2023 SCC OnLine Del 5469 and held: 11. It is trite law that an order passed under Section 311 Cr. P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr. P.C. Therefore, the present revision petition filed against order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr.P.C., is thus, not maintainable. It is trite law that an order passed under Section 311 Cr. P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr. P.C. Therefore, the present revision petition filed against order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr.P.C., is thus, not maintainable. 9. Hence, the present revision petition is not maintainable. 10. Even otherwise, the petitioner intended to place on record a copy of the complaint filed by him. It is in the nature of an admission made by him that the cheque was taken from him forcibly. Section 19 of the Bharatiya Sakshya Adhiniyam (BSA) specifically provides that an admission can be proved against the person, who had made it but cannot be proved on behalf of the person making it except in three cases mentioned in Section 19 of BSA. The case of the petitioner does not fall within the three exceptions, and he is not entitled to prove the admission made by him on his behalf in the complaint filed by him. 11. It was submitted that the question of relevance is to be seen at the time of argument and not at this stage. This submission is only stated to be rejected. When an evidence has been held to be inadmissible by the Act, it cannot be admitted simply to be rejected at the time of the arguments. Admitting irrelevant and inadmissible evidence will lead to a delay in trial and violate the provisions of the BSA. 12. Therefore, the order passed by the learned Trial Court refusing to take the copy of the complaint on record cannot be faulted even on merits. 13. In view of the above, the present petition fails the same is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of. 14. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.