Delhi District Court
Kolian Chandpuri vs . State & Anr. on 24 July, 2018
Kolian Chandpuri Vs. State & Anr.
CR No.69/2018
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the Matter of :
CR No. 69/18
Kolian Chandpuri,
S/o Sh. Manohar Nath Chandpuri,
R/o Flat no.557, Sector16B,
PocketB, Janta Flats, Dwarka,
New Delhi. ...........Petitioner/
Revisionist
Versus
(1) State (Govt. of NCT of Delhi)
(2) Omvir,
S/o Sh. Hari Singh
R/o G7, Prem Nagar,
Gali No. 12, Near
Nav Uday Convent Public School,
Najafgarh, New Delhi110043. ............Respondents
Date of Institution : 12.02.2018 Date of conclusion of arguments : 24.07.2018 Date of Order : 24.07.2018 Page 1 of 15 Kolian Chandpuri Vs. State & Anr. CR No.69/2018 O R D E R :
1. Vide this order I shall dispose off this revision petition preferred against the impugned orders dated 02.01.2018 and 03.02.2018 passed by Ld. MM, Dwarka Court, Delhi, whereby the application moved by the petitioner under section 311 Cr.PC for recalling the complainant for further cross examination and application for leading defence evidence by way of placing on record containing the recorded conversation of the petitioner and respondent have been dismissed. (For the sake of convenience the petitioner / accused and respondent / complainant are hereinafter referred to as petitioner and respondent respectively.)
2. Brief facts relevant for disposal of the present petition are that the respondent filed a criminal complaint against the petitioner under section 138 NI Act stating therein that the respondent had advanced a friendly loan of Rs.4,00,000/ to the petitioner in the first week of April, 2015. The petitioner / accused has promised to return back the same within a period of 03 months. Page 2 of 15
Kolian Chandpuri Vs. State & Anr.
CR No.69/2018After the expiry of aforesaid period of three months, when the respondent approached the petitioner with a request to return the loan amount, the petitioner avoided the respondent on one pretext or the other. But on request being made time and again by the respondent, the petitioner issued two cheques of Rs.2 lacs each which on presentation were dishonored with the remarks "Insufficient Funds" vide banker memo dated 17.11.2015. The respondent issued a legal notice under section 138 NI Act on 04.12.2015. Despite service of the legal notice petitioner has not paid the amount.
3. The respondent filed a complaint u/s 138 of N. I. Act and after being summoned, the notice was framed against the petitioner and evidence was lead by the respondent. Petitioner was examined u/s 313 Cr.PC who had also submitted to lead DE but, thereafter, the petitioner did not lead any DE and DE was closed. Matter was listed for final arguments. Thereafter the petitioner moved an application recalling the respondent witness for further cross examination. The said application was dismissed through Page 3 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018order dated 02.01.2018. Thereafter, the petitioner has moved another application for leading defence evidence that was also dismissed through order dated 02.02.2018.
4. Feeling aggrieved by the impugned orders, present revision petition has been preferred by the petitioner.
5. During the course of arguments, ld. Counsel for the petitioner has raised the following contentions :
(i) Ld. MM has failed to appreciate that there is no evidence against the petitioner and whatsoever evidence is on record, the petitioner want to controvert either by further cross examining the respondent by recalling him or to place on record the documentary evidence through the CD containing the recorded voice of the petitioner and the respondent. The said applications has been wrongly dismissed by Ld. MM.
(ii) Ld. Trial court has not kept into consideration the settled principle of law with regard to the entertaining the Page 4 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018application u/s 311 Cr.PC in as much as the petitioner had a legal right to lead his defence to controvert the testimony of the respondent. Therefore, an opportunity should be given to the petitioner either to recall the respondent or to lead his defence evidence by way of presenting CD containing recorded conversation between petitioner and the respondent.
(iii) The impugned order has been passed by ld. Trial court by keeping in view the fact that at no previous stage of proceedings the evidence sought to be produced by the aforesaid CD was in his knowledge, therefore, this petition deserves to be allowed.
(iv) The recorded conversation contained in the CD is relevant and identification of voice of the respondent is permissible in law as per the settled principle of law laid down by Supreme Court in this regard. Reliance is placed upon "CBI Vs. Abdul Karim Ladsab Telgi" 2005 Cri.L.J. 2868.
(v) Ld. Trial court has not appreciated the law with regard to recalliong of the witnesses u/s 311 Cr.P.C. In this regard Page 5 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018reliance is placed upon "Anil Kumar Vs. Sunita & Ors." 2013 Law Suit (Del) 662.
6. Percontra ld. counsel for the respondent during the course of arguments has raised the following contentions. The petitioner want to delay the proceedings on one pretext or the other and this complaint of the respondent is pending since last more than two years. The petitioner had never come with the defence at any point of time to controvert the allegations levelled in the complaint which he now want to put forth through both the applications which have been dismissed vide impugned orders. The petitioner want to fill up the lacunae in his case which is not permissible as per the law laid down by Supreme Court. This application deserves to be dismissed.
7. I have heard Ld. Counsel for the parties and with their assistance gone through the record.
8. Law with regard to the power to be exercised by the Page 6 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018court u/s 311 Cr.P.C. has been discussed in case titled "State of Haryana vs. Ram Mehar & Ors." (2016) 8 SCC762 wherein all the case law namely, Natasha Singh, Rajender Prasad were discussed in detail and sum and substance of the ratio of law laid down in the above said judgment is laid down in para no.34 which is as under : The Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 Cr.P.C. We think it seemly to reproduce some of them : (Rajaram Prasad case (2013) 145 SCC 461).
" 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, in conclusive and 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 CrPC 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 filing in a lacuna in a prosecution case, unless and 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 Page 7 of 15 Kolian Chandpuri Vs. State & Anr.CR No.69/2018
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.
* * * 17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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.
* * * 17.14. The power under Section 311 CrPC 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 cirsumspection. 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."
It was further observed in para 35 xxxxxxxxxx :
"15. ... While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly Page 8 of 15 Kolian Chandpuri Vs. State & Anr.CR No.69/2018
when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every changes of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross examination."
In Best Bakery case, it was observed that the provision of Section 311 Cr.P.C. is in two parts. The first part gives the discretion to the court to examine the witness at any stage and the second part which is the mandatory portion compels the court to examine the witness in evidence appears to be essential for the just decision of the case. Though the discretion given to the court is very wide, therefore, the very width requires the corresponding caution. The object of the section is to enable the court to arrive at the truth irrespective of the fact that neither prosecution nor defendant had produced some evidence which is necessary for just and proper disposal of the case. The only issue to be considered is whether evidence proposed to be adduced is relevant or not. So is the ratio of Natasha Singh case.
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9. With the above said principles of law I would like to advert to the facts of the present case. It may be noted that petitioner had moved first application which has been dismissed vide impugned order dated 02.01.2018. The contents of this application are to the extent that the petitioner wanted to recall the respondent for further examination, in order to confront the respondent with recorded conversation containing the dialogue having taken place between the petitioner and the respondent, which is recorded in the mobile phone of the petitioner. The said application was dismissed, interalia, on the ground that no date is mentioned on which the recorded conversation had taken place. Thereafter, the petitioner moved the second application for leading defence evidence by giving specific date, time and year i.e. 22.09.2015 on which date the recorded conversation was recorded on the mobile of the petitioner through which the call was made on the mobile of the respondent. This application was also dismissed through the impugned order dated 03.02.2018.
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CR No.69/2018
10. The contention of the counsel for the petitioner is to the extent that petitioner may be given an opportunity to controvert the testimony of the respondent either by recalling the respondent or petitioner may be allowed to lead defence evidence through the CD containing the recorded conversation which had taken place between the petitioner and the respondent. This contention appears to be attractive but the same is fallacious in as much as petitioner was summoned in the complaint out of which the present petition has arisen and notice was framed u/s 251 Cr.PC on 24.05.2016 wherein the defence of the petitioner was that "he has received the cheque in question as surety cheques against the supply of materials by the complainant on the project site situated at PAN Oasis, Plot No. GH1, Sector70, Noida and had already made the payment including interest against the supply of the said materials and labours and the liability towards complainant is only approximately Rs.44,800/".
11. The second stage during which the petitioner was to Page 11 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018putforth his defence is the application moved by the petitioner u/s 145 (2) of the NI Act and the said application was containing defence in para 3 as under : "That the complainant has misused the surety cheques bearing no. 556363 and 556364 both drawn on State Bank of India, G3, Vikaspuri, New Delhi which was given by the accused in advance against the supply of materials / fire equipments on his project site situated at PAN Oasis, Plot no. GH1, Sector70, Noida. It is pertinent to mention here that the cheque in question was taken by the complainant in blank and the same was only signed by the accused. Even otherwise the accused has already paid all his total amount of Rs.8,60,000/ in three installments alongwith interest except the balance amount of Rs.44,800/ approximately and nothing is due against him, hence, the present complaint is liable to dismissed."
12. The third stage at which the petitioner got opportunity to disclose his defence is the statement of petitioner recorded under 313 Cr.PC wherein petitioner had submitted that "The complainant Page 12 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018and I were involved in business together and for the purpose of security, I had issued the above mentioned blank cheques to the complainant. I have already repaid a substantial amount to the tune of Rs.8.60 lakhs and Rs.44,800/ are due against me. The cheques have been misused by the complainant."
And in the last question the petitioner has submitted that he has been falsely implicated in the present case. He has also consented to lead defence evidence but thereafter he closed his defence evidence.
13. It may be noted that at all of these three stages, the petitioner has never come forward to candidly submit that a dialogue has been taken place between the petitioner and respondent which was duly recorded by the petitioner in the mobile phone in the year 2015. The applications of the petitioners are lacking bonafides in as much as in the previous applications dated 13.07.2017 was shorn of details as to on which date the recorded conversation had taken place. But after dismissal of this application through impugned order dated 02.01.2017 another application dated Page 13 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/201823.01.2018 was moved by the petitioner in which the petitioner has given specific date, time and place i.e. on 22.09.2015 on which the conversation had taken place between the petitioner and respondent and the said conversation was got recorded in the mobile phone of the petitioner. There is no dispute with regard to proposition of law as detailed in the Telgi case (supra) that an accused can be made to give his specimen voice for comparison with the recorded / disputed voice but in the present case, the petitioner has never, at any stage of the proceedings as stated above in the foregoing para, had come forward with the defence that he is only supposed to pay Rs.40,000/ as detailed in the recorded conversation contained in the CD, which was downloaded from the phone of the petitioner. But after closing of defence evidence the petitioner had come with a new defence that a recorded conversation between the petitioner and respondent in the year 2015 is in his possession and respondent in such recorded conversation had candidly admitted the liability of Rs.40,000/ to be paid by the petitioner to the respondent. From the contents of the applications, it appears that the petitioner has come forward with a defence which has never been put forward on any Page 14 of 15 Kolian Chandpuri Vs. State & Anr.
CR No.69/2018stage of the proceedings in the trial, to fill up the lacuna in his case. Therefore, this petition being devoid of merits deserves to be dismissed.
14. From the above discussions, I am of the opinion that there is no substance in the present revision petition and the same deserves to be dismissed. As such, the present revision petition filed before this court stands dismissed.
15. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case. Copy of this order be sent to the Ld Trial court for the purposes of record and this file be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
KUMAR DAHIYA
Announced in the open court today, DAHIYA Date:
2018.07.27
15:37:59
On 24th Day of July, 2018.
+0530
(DR. V.K. DAHIYA)
SPECIAL JUDGE : CBI (PC ACT)
DWARKA COURTS/NEW DELHI
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