Delhi District Court
Traxpo Enterprises Pvt. Ltd vs Pec Limited on 30 November, 2017
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 438/2017
In the matter of:
1. Traxpo Enterprises Pvt. Ltd.
through its Director
2. Shri Sudarshan Kumar Tapuria,
S/o Late Sh. S.S. Tapuria,
(both C/o Jash Chambers, 5th Floor,
Sir P.M. Road, Mumbai)
3. Shri Shashikant Tapuria
S/o Late Sh. S.S. Tapuria,
c/o 42/1, Strand Road, Kolkata 700007 ....Petitioners.
Versus
PEC Limited,
With its Office at Hansalaya,
15, Barakhamba Road,
New Delhi 110001. .....Respondent.
Date of Institution : 06.10.2017
Date of Arguments : 28.11.2017
Date of Decision : 30.11.2017
JUDGMENT
1. Vide this judgment, I shall decide revision petition filed by the petitioners against the order dated 04.09.2017 passed by Ld. MM. Vide this order Ld. MM has allowed the application u/s. 311 Cr.P.C moved on behalf CR No. 438/17 1 of 7 07.01.2017 of complainant for placing on record certain additional documents.
2. Aggrieved by order dated 04.09.2017, petitioners have filed the present revision petition on the grounds that the Ld. MM has failed to appreciate the basic ingredients of Section 311 Cr.P.C which provides for summoning any person as witness or examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined. Section 311 Cr.P.C no way deals with documents much less seeking production of documents thereof. Ld. MM has exercised jurisdiction not vested in it rather exceeded its jurisdiction. The application was not maintainable and it was misconceived. The application was filed on June, 2015 and respondent was cross examined. The application is highly belated and became infructuous. Ld. MM has failed to appreciate the fact that documents were asked to be produced during cross examination of respondent's witness. There was no occasion for the Ld. MM in permitting the said documents to be taken on record at the belated stage. The Ld. MM has wrongly came to conclusion that the provisions are of wide amptitude. Ld. MM did not consider that accused suffer from latches and negligence. It is prayed that order dated 04.09.2017 be set aside.
3. I have heard Ld. Counsel for the petitioners and Ld. Counsel CR No. 438/17 2 of 7 07.01.2017 for the respondent at length and perused the records of this court as well as Trial Court very carefully.
4. Perusal of the Trial Court Record reveals that respondent has filed complaint u/s. 138 NI Act against the petitioners. Perusal of the file further reveals that complaint was filed by the respondent in the year 2009 and on maximum dates exemptions applications were filed on behalf of accused Nos. 2 and 3. Notice under Section 251 Cr.P.C was framed against the accused and since then case is fixed for complainant evidence.
5. Perusal of the Trial Court Record further reveals that statement of CW1 was recorded and he was cross examined at length by Ld. Counsel for the petitioners on various dates. Ld. Counsel for the respondent has drawn my attention towards the cross examination of CW1 conducted on 27.03.2015. During cross examination Ld. Counsel for the petitioners had put question to the CW1 that "pertaining to the alleged import as claimed by you in the earlier answer. Have you placed the record of the alleged imports on the record". CW1 has answered that No document pertaining to imports of consignment including bill of lading, letter of credit (LC)/ mode of payment, invoice, packing list have been placed on record. Vol. I can produce the same on court record, if required. Thereafter, further cross examination of CW1 was deferred on the request of Ld. Counsel for accused as he has to rush for some personal work. The present application CR No. 438/17 3 of 7 07.01.2017 was filed on 02.06.2015.
6. Ld. Counsel for the petitioners has vehemently contended that under Section 311 Cr.P.C Ld. MM cannot give permission to place on record the documents. He has placed reliance on judgment titled as "Nesar Ahmad @ Nasser and Ors. VS. The State of Bihar and Anr." passed by Hon'ble Patna High Court wherein, it is held that "if Section 311 of Cr.P.C is to be construed in its true perspective, documents cannot be included within the ambit of Section 311 of Cr.P.C.
On the other hand, Ld. Counsel for the respondent has placed reliance on judgment titled as "Apparel Export Promotion Council Vs. Mahavir International P. Ltd. & Ors." wherein, it is held that " The Supreme Court in Rama Paswan (supra) observed that the object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in brining valuable evidence on record or leaving ambiguity in the statement of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused. The said section applies to all CR No. 438/17 4 of 7 07.01.2017 proceedings, inquiries and trial under the Code and empowers the Magistrate to issue summons to any witness at any stage of proceedings, trial or inquiry. The discretion conferred on the Court is to exercised judiciously considering the wide power that it vests with the Court". In this judgment is also held that "in view of the nature of the additional documents sought to be led in evidence by the appellant namely, the speaking order dated 1.10.2005, the order of the first appellate committee dated 2.05.2006 and the order of the second appellate committee dated 8.3.2007, there can be absolutely no doubt with regard to their relevance for a just decision of the case. If these documents are proved and rare to be read in evidence, one of the fundamental premise on which the acquittal of the accused is founded namely, that no ascertained or definitive liability of the accused existed on the date of presentation of the cheque in question, would stand negated."
Ld. Counsel for the respondent has also placed reliance on judgment titled as "Inderjeet Singh Maggon Vs. Harash Suri" wherein, it is held that " before allowing the application under Section 311 of Cr.P.C, it is the duty of the Court to determine the relevance of any document for being brought on record and from the perusal of the CR No. 438/17 5 of 7 07.01.2017 impugned order, this Court observes that the learned Metropolitan Magistrate has exercised his discretion under Section 311 of Cr.P.C while discussing the settled law that no party should suffer loss and the best possible evidence should be brought before the Court by respective parties to prove their points of contention. This Court does not find any irregularity or infirmity in the said order". In this judgment, it is also held that " it is also a settled principle that the Trial Court has been given an undoubted discretion in the matter and the discretion has to be judiciously exercised by it. In the considered opinion of this Court, once the Trial Court has exercised its discretion, it is not for this Court, to substitute its own discretion for that of the learned Metropolitan Magistrate or to examine the case on merits with a view to find out whether or not the document sought to be placed on record is relevant or not for the proper adjudication of the case. Moreover, the petitioner is already vested with a right to crossexamine the respondent in the case, therefore no question of any prejudice seems to be caused to the petitioner herein".
7. I am in agreement with the submissions of Ld. Counsel for the CR No. 438/17 6 of 7 07.01.2017 respondent. In both the judgments cited by Ld. Counsel for the respondent the permission was granted to place on record the documents while allowing the application under Section 311 Cr.P.C. In the present case, Ld. Counsel for the petitioners had put questions to CW1 regarding the documents and the witness had replied volunatrily that he can produce the documents. Thereafter, adjournment was requested by Ld. Counsel for the petitioners and on the next date of hearing lawyers were abstaining from work and application was filed on 02.06.2015. I am of the view that Ld. MM has rightly exercised its jurisdiction while allowing the application under Section 311 Cr.P.C.
8. In view of the above discussions, I am of the view that there is no illegality or infirmity in the order dated 04.09.2017 and Ld. MM has rightly allowed the application. The revision petition filed by the petitioners is without any merits and same is hereby dismissed.
Trial Court record be sent back along with copy of judgment. Revision file be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 30.11.2017. Spl. Judge, CBI02,
New Delhi District, PHC.
CR No. 438/17
7 of 7
07.01.2017