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Poonam Devi vs . Saroj Order Dated 06.07.2019 on 6 July, 2019

Poonam Devi Vs. Saroj                                  Order dated 06.07.2019


    IN THE COURT OF ADDITIONAL SESSIONS JUDGE­05 (NORTH)
                     ROHINI COURTS, DELHI

CNR No. DLNT01­001816­2019
Criminal Revision No. 56/2019

Poonam Devi
W/o Mukesh Khatri
R/o 1958­B, Pana Mamurpur,
Narela, Delhi­110040.                                  ..... Revisionist

                                    Versus

Saroj
W/o Rajvir Khatri
R/o Flat No. 285, Pocket­4,
Sector­9, Narela,
Delhi­110040.                                          ..... Respondent

Date of institution: 05.03.2019
Date of arguments: 28.05.2019
Date of order: 06.07.2019

ORDER:

1. This is a revision petition directed against an order dated 22.11.2018 passed by Ld. Metropolitan Magistrate­01, North, Rohini, Delhi in criminal complaint case no. 1722/2016.

2. Notice of this revision petition was issued to respondent and Trial Court record was summoned.

Poonam Devi Vs. Saroj Order dated 06.07.2019

3. Perusal of trial court record shows that revisionist herein had filed a criminal complaint against the respondent alleging that respondent herein (Smt. Saroj) had issued cheque bearing no. 026686 dated 15.05.2013 and cheque bearing no. 026688 dated 07.01.2013 amounting to Rs. 9,80,000/­ each, drawn on State Bank of India. These cheques were dishonoured vide returning memos dated 28.05.2013 (Ex.CW1/2) and 12.04.2013 (Ex.CW1/9).

4. The respondent was summoned as accused and notice U/s 251 Cr.P.C. was framed. The complainant (revisionist herein) examined herself as CW1 and closed her evidence. Statement U/s 313 Cr.P.C. was recorded. Case was fixed for DE, but the respondent herein i.e. accused Smt. Saroj did not lead any evidence in her defence. Therefore, case was fixed for final arguments vide order sheet dated 27.07.2016. Later on, accused (respondent herein) moved an application under Section 311 Cr.P.C. praying for cross examine the complainant. This application of accused was allowed vide order sheet dated 20.03.2017. CW1 was cross examined on 28.07.2017.

5. Since the case was already fixed for final arguments vide ordersheet dated 27.07.2016, the case was, therefore, again fixed CR No. 56/2019 Page 2 of 6 Poonam Devi Vs. Saroj Order dated 06.07.2019 for final arguments. Final arguments were partly heard on 19.04.2017. The ordersheet dated 01.06.2018 shows that the complainant (revisionist herein) moved an application U/s 311 Cr.P.C. which was dismissed by Ld. MM vide impugned order dated 22.11.2018. Aggrieved by this order, the revisionist has filed the present revision petition.

6. Ld. Counsel for the respondent has drawn my attention to the impugned order and has submitted that the Trial Court rightly relied upon Mohan Lal Shyamji Soni vs. Union of India AIR 1991 SC 1346, wherein it was held that the power U/s 311 Cr.P.C. should not be used for filling up the lacuna of the prosecution case or to the disadvantage of the accused or to cause serious prejudice to the accused.

7. On the other hand, Ld. Counsel for the revisionist has drawn my attention to the cheque returning memos Ex.PW1/2 and Ex.CW1/9 issued by Bank of India. Ld. Counsel for the revisionist (complainant) argued that at the stage of final arguments, the accused had pointed out that these cheque returning memos do not bear the stamp of the bank and the signature of the concerned official.

Poonam Devi Vs. Saroj Order dated 06.07.2019

8. Ld. Counsel for revisionist argued that the respondent/accused did not raise this issue at the time of framing of notice nor during cross examination of the complainant and nor in his statement under Section 313 CrPC. It is argued that respondent/accused raised this issue for the first time at the stage of final arguments. When such an objection has been raised, it is upon the complainant to bring on record the true facts and therefore, he should be allowed to lead evidence on this aspect.

9. I have considered the rival submissions. The complainant led his evidence on affidavit and he was thoroughly cross examined by the respondent/accused on 18.1.2016. However, he did not draw the attention of complainant (CW1) to the fact that cheque returning memos do not bear the stamp and signatures of concerned bank official. In statement under Section 313 CrPC also the respondent/accused remained silent and did not challenge the authenticity of cheque returning memos. When this is the situation, it becomes a fit case for the trial court to raise presumption of the correctness and genuine of the aforesaid cheque returning memos. However, when the respondent/accused has raised this issue seriously at the stage of final arguments, the complainant/petitioner cannot be left in CR No. 56/2019 Page 4 of 6 Poonam Devi Vs. Saroj Order dated 06.07.2019 lurch by the trial court. Moreover, when a fact can be ascertained by production of the record or witness from the bank, the court should not take the recourse of raising inference under Section 114 of Indian Evidence Act 1872. I agree that when the case is at the stage of final arguments, applications under Section 311 CrPC should be discouraged. But at the same time when it appears to the court that production of certain evidence is necessary for just decision of the case, the court should not hesitate in using its powers under Section 311 CrPC.

10. Ld. Trial court has referred to Mohan Lal Shamji Soni Vs. Union of India in support of his order and he was of the opinion that the power should not be used for filling up the lacuna left by the prosecution for the defence. It is pertinent to note that Ld. Metropolitan Magistrate has mentioned in the impugned order that although it is necessary to prove the dishonour of cheque on record for which dishonour memos are crucial piece of evidence but there can be other circumstances through which fact of dishonour can be proved. This observation of the trial court shows that Ld. Metropolitan Magistrate agreed to the fact that proving the cheque returning memo is crucial piece of evidence. But he indicated that through other circumstances, the fact of dishonour CR No. 56/2019 Page 5 of 6 Poonam Devi Vs. Saroj Order dated 06.07.2019 of cheque can be proved. I have already mentioned that when an aspect of a case is a matter on record, it is better that production of record and concerned bank witness itself should be insisted by the court.

11. I have perused Mohan Lal Shamji Soni, which is a judgement of Hon'ble Supreme Court. It is clearly held in this judgement that powers under Section 311 CrPC are discretionary powers and that it should be exercised for just decision of the case. I have also held that production of bank record and concerned witness of bank as prayed by revisionist is necessary for just decision of the case. Accordingly, I set aside the impugned order and allow the application under Section 311 CrPC. Ld. Metropolitan Magistrate shall summon the concerned official of Bank with relevant record to prove the aforesaid memos. Revision petition is accordingly allowed.

12. Copy of order along with the trial court record be returned to the trial court, where the parties shall appear on 11.7.2019.

13. Revision file be consigned to record room. Announced in the open VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2019.07.06 Court on 06.07.2019.

10:53:15 +0530 (Vinod Kumar) Additional Sessions Judge­05 (North) Rohini Courts: Delhi CR No. 56/2019 Page 6 of 6