Madhya Pradesh High Court
Mahendra Kumar Patel vs Sindh Hardware Store on 27 October, 2015
1 M.Cr.C. No. 12258 of 2015
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
MISCELLANEOUS CRIMINAL CASE NO. 12258 OF 2015
APPLICANT: Mahendra Kumar Patel
S/o Shri Lalta Prasad Patel,
Aged about 44 years,
R/o Village - Panjra Kala,
Thana - Hoshangabad
Tah. - Itarsi, District Hoshangabad (M.P.)
Versus
RESPONDENTS: Sindh Hardware Store, Itwara Bazar,
Hoshangabad, through its Proprietors
1. Pankaj Raichandani,
S/o Late Shri Naresh Kumar Raichandani,
Aged about 24 years,
2. Rashmi Raichandani,
D/o Late Shri Naresh Kumar Raichandani,
Aged about 28 years,
3. Chitra Raichandani,
W/o Late Shri Naresh Kumar Raichandani,
Aged about 50 years,
All R/o Krishna Puri, Sindhi Coloni,
Hoshangabad (M.P.)
4. Renu Phapadi,
D/o Late Shri Naresh Kumar Raichandani,
W/o Shri Arun Phapadi, Aged about 30 years,
R/o Bihari Chowk, Satna (M.P.)
-------------------------------------------------------------------------------------------
Shri Ravendra Shukla, Advocate for the applicant.
------------------------------------------------------------------------------------------- 2 M.Cr.C. No. 12258 of 2015
(O R D E R) Passed on: 27.10.2015 This petition under Section 482 of the Criminal Procedure Code, 1973, hereinafter referred to as "the Code" has been filed by the applicant/accused against the impugned order dated 19.06.2015 passed in Criminal Case No. 454/2015, by Judicial Magistrate First Class, Hoshangabad, whereby the Magistrate closed the right of the applicant for producing defence evidence.
02. The respondent/complainant has filed criminal case against the applicant for commission of offence punishable under Section 138 of the Negotiable Instrument Act (66 of 988), hereinafter referred to as "the Act", before learned trial Court. It was alleged that the applicant has purchased the agricultural equipments on credit and payment was made through a cheque bearing No.022644 dated 08.06.2010 payable at Axis Bank, Hoshangabad, when the respondent deposited the cheque in his bank it was dishonored due to mis-match signature of the applicant.
03. Facts leading to present dispute summaries as that, plea of the applicant is that he does not purchased any agricultural equipments from the respondent; however his brother purchased the same and also made the payment by cash. While applicant examined under the provisions of Section 313 of the Code he has specifically denied all evidence put forth against him. The applicant voluntarily come forward to give evidence by written request and enters in witness box. When the case was fixed for evidence of the applicant and his witnesses, the applicant could not appear before learned trial Court due to illness and has filed an application under Section 317 of the Code for exemption of his personal presence, which were allowed but, learned trial 3 M.Cr.C. No. 12258 of 2015 Court closed the right of the applicant to produce the defence evidence on the ground that the applicant has already taken more time for the same purpose.
04. Shri Ravendra Shukla, learned counsel for the applicant submitted that learned trial Court has committed grave error in not extending the time for adducing the evidence for properly defend the case, hence the impugned order deserves to be set aside as it is against the cardinal principle of natural justice that every party should be allowed reasonable opportunity to prove its case.
05. Having heard learned counsel for the applicant, perused the impugned order and after going through the available record, the Court is of the opinion that this petition deserves to be allowed.
06. Section 315 of the Code, Accused person to be competent witness What is required for availing of the benefits as per the provisions contained in the section 315 of the Code are:-
(1) that there must be a trial in the criminal court;
(2) person applying to be examined under the provisions of the said provisions would be necessarily an accused;
(3) when the stage of invoking the provisions of the said Act has reached i.e. to say after conclusion of record of evidence of the prosecution followed by the explanations/submissions of the accused as required under sec.
313 of the Code is over;
(4) the evidence of such accused will to on oath as a witness; (5) such evidence must be in disproving of the charges made against him or any person charged together with him at the trial is last requirement.
07. The pertinent aspect is that such evidence must be in disproving of the charges made against him or any person charged together with him at the same trial. Hence, the nature of evidence cannot be for strengthening the 4 M.Cr.C. No. 12258 of 2015 case of the prosecution to prove guilt of any of the accused, but must be in disproving of the charges made against him. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to examine himself on oath as a witness.
08. There is no compulsion involved in examination of the accused under sec. 315 of the Code. Art. 20(3) of the Constitution cannot be invoked to challenge the constitutionality of this section- Tukaram G. Gaokar vs. R.N. Shukla and others, AIR 1968 SC 1050.
09. Therefore, this section nowhere imposes any obligation on the Court to explain to the accused regarding his right to examine himself as a defence witness.
10. The Apex Court in case of Selvi and others vs. State of Karnataka, reported in (2010)7 SCC 263 observed that even though any accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so.
11. But, once the accused volunteers to give evidence by written request and enters the witness box, he subjects himself to all the liabilities of an ordinary witness.
12. The Apex Court in case of Gajendra Singh and others vs. State of Rajasthan, reported in (1998)8 SCC 612 observed that once the court allows the application of the accused to be examined as a defence witness and commences recording his evidence, he cannot be denied opportunity to produce his documents merely because he did not produce the same earlier.
13. The accused person was earlier allowed to be examined under sec. 315 of the Code, but he did not choose to depose. The defence evidence 5 M.Cr.C. No. 12258 of 2015 was thereafter closed after giving adequate opportunities to the defence. In the circumstance the plea of violation of natural justice has no legs to stand upon.
14. In light of above discussed legal position, these facts required to be repeated that after statements recorded under the provisions of Section 313 of the Code the appellant/accused Mahendra Patel chooses to examine himself as witness to disproving of the charges made against him and after obtaining required permission under the provisions of Section 315 of the Code his examination-in-chief was also recorded on dated 16.05.2015 but, cross- examination was deferred. On the next date of hearing 19.06.2015 while the appellant was not present his application for exemption under the provisions of Section 317 of the Code were allowed but, when learned counsel for the appellant prayed for time to produce the defence evidence learned trial Court vide impugned order rejected the prayer and fixed the case for final hearing on 26.06.2015.
15. It is manifestly clear that when learned trial Court found the absence of appellant justified and also allowed the application filed under the provisions of Section 317 of the Code hence, any just reason was not on record for refusal to produce defence evidence particularly cross examination of the applicant.
16. To deny a litigant an opportunity on grounds, as discussed above is against the criminal justice delivery system. At this juncture, this cardinal principle of natural justice requires to be repeated that every party has right to be allowed sufficient opportunity to put up his case as well as his defence and reason is simple that the other party will also be at liberty to rebut it and can produce evidence for its rebuttal.
17. In light of above facts and circumstances of the case by allowing this petition, the order passed by learned trial Court is hereby quashed. Parties 6 M.Cr.C. No. 12258 of 2015 shall appear personally or through their counsel before learned trial Court (Judicial Magistrate First Class, Hoshangabad) on dated 19.11.2015. Thereafter, learned trial Court will give an opportunity to the applicant to produce his defence evidence. At the same time, learned trial Court will also made available appropriate opportunity to the respondent to rebut defence evidence put up by the applicant and also allow the respondent to produce further evidence for rebuttal, if so desire.
(Subhash Kakade) Judge ak/