Delhi District Court
Umesh Yadav vs Sandeep Sehrawat on 31 July, 2017
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the Matter of :
CR No. 33/17
Umesh Yadav
S/o Sh. Jaswant Singh
R/o L94A, Plot No. 267,
Mahipalpur Extension,
New Delhi110037. ....Petitioner
Versus
Sandeep Sehrawat
S/p Sh. Satya Pal Singh
R/o H.No. :145, BlockL
Gali No. 9, Behind Aramex Office,
Mahipalpur Extension
New Delhi110037. .....Respondent
Date of Institution : 24.05.2017 Date of conclusion of arguments : 21.07.2017 Date of Order : 31.07.2017 O R D E R
1. Vide this order I shall dispose off this revision petition preferred against the impugned order dated 25.04.2017 passed by Ld. 1/10 CR No.33/17 MM, Dwarka Court, Delhi, whereby the application moved by the petitioner under section 311 Cr.PC has been dismissed.
2. Brief facts relevant for disposal of the present petition are that the complainant / respondent filed a criminal complaint against the petitioner / accused under section 138 NI Act stating therein that the complainant had advanced a friendly loan of Rs.2,50,000/ which was advanced by the respondent to the petitioner on 14.12.2015. The petitioner again approached the respondent on 25.01.2016 requesting for friendly loan of Rs.1,00,000/ which was advanced by the respondent in the presence of common friends. The petitioner has promised to return the total amount of Rs.3,50,000/ in the first week of May'2016 and petitioner executed a written receipt of loan amount taken by the petitioner from the respondent. The petitioner approached the complainant at his house on 11.05.2016 and handed over a cheque which on presentation was dishonored with the remarks "stopped payment by drawer" vide banker memo dated 16.05.2016. Respondent issued a legal notice under section 138 NI Act on 30.05.2016. Despite service of the legal notice petitioner has not paid the amount.
3. The respondent filed 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 parties and matter was listed for final 2/10 CR No.33/17 arguments. The application under section 311 Cr.PC was moved by the petitioner stating therein the DW was examined but some documents are not exhibited on account of inadvertence, therefore, DW1 was to be recalled for cross examination otherwise great prejudice will be caused to the petitioner and, therefore, it was sought that DW1 be recalled. The application under section 311 Cr.PC was dismissed and matter is listed for orders.
4. Feeling aggrieved by the impugned order, present revision petition has been preferred by the petitioner.
5. It has been contended by the Counsel for the petitioner that the petitioner could not place the documents of transcripts of the phone call exchanged amongst the petitioner, complainant, mother of the petitioner and mother of respondent and Deepak Sehrawat to whom the cheque in question was handed over by the petitioner. The transcript, the CD ROM and the letter of stop payment annexed with this petition are the documents, which are sought to be proved by the petitioner by way of this petition. The Ld. Trial Court had erred in law in as much as the respondent has not filed any reply, therefore, the said application under section 311 Cr.PC deserved to be allowed. The evidence sought to be brought on record is very much necessary to decide the real issue between the parties in as much as CD ROM of the 3/10 CR No.33/17 conversation which took place amongst the above mentioned parties make it crystal clear that the cheque in question was handed over to Deepak Sehrawat in lieu of friendly loan which was taken from Deepak Sehrawat by petitioner. The respondent has no connection whatsoever with the said loan transaction which had taken place between petitioner and Deepak Sehrawat. Otherwise, also, the defence of the petitioner right from the beginning is that cheque in question was given to the Deepak Sehrawat as security purpose only. The petitioner has disclosed the reason to entertain the application u/s 311 Cr.P.C. in as much as the contents of the CD took place between the abovesaid parties after leading evidence of DW1. Therefore, this application was moved before closing of the defence evidence. The application was not filed to delay the proceedings, otherwise, as per mandate of law the petitioner is at liberty to prove his defence and only issue at the time of consideration of the application u/s 311 Cr.P.C. is whether evidence sought to be adduced is relevant or not. The power under this section is to be exercise judiciously so as to enable the court to determine the truth and to render a just decision. In this regard reliance is placed upon (i) Rajendra Prasad Vs. Narcotic Cell, AIR 1999 Supreme Court 2292, (ii) Zahira Habibulla H.Sheikh and Another Vs. State of Gujarat and others, (2004) 4 Supreme Court Cases 158, (iii) Natasha Singh Vs. Central Bureau of Investigation, (2013) 5 Supreme Court Cases 741.
4/10 CR No.33/176. Percontra ld. counsel for the respondent has contended that right from the beginning the defence of the petitioner was not to the effect that any such evidence in the shape of CD ROM or other documents which are sought to be proved through this application were available with the petitioner. Further more, even in the application moved before the Ld. MM, is shorn of detail in as much as the petitioner through this application wanted to recall DW1 to prove certain documents. But now the petitioner has come out with the new case of proving the CD allegedly containing conversation amongst the relatives of the parties and one Deepak Sehrawat which has no relevance to the controversy in question. This petition being devoid of merits deserves to be dismissed.
7. I have heard Ld. Counsel for the parties and with their assistance gone through the record.
8. It may be noted that the law with regard to the power to be exercised by the court 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 relied upon by the petitioner namely, Natasha Singh (supra), Rajender Prasad (supra) 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 :
5/10 CR No.33/17The 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 reexamine 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 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 6/10 CR No.33/17 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 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 crossexamination."
In Best Bakery case (supra), it was observed that the provision of Section 311 Cr.P.C. is in two parts. The first part gives 7/10 CR No.33/17 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.
9. With the above said principles of law I would like to advert to the facts of the present case, the petitioner in his application u/s 311 Cr.P.C. has made prayer for recalling DW1 and his further examination, but in this present revision petition, the petitioner had come out with a new case that he has handed over the cheque to one Deepak Sehrawat and there is audio recording in the shape of CD ROM of the conversation which had taken place on mobile phone amongst the respondent, mother of respondent and Deepak Sehrawat, to whom the cheque in question was given by the petitioner. The said conversation has been downloaded on the CD Rom and the petitioner want to place on record the said CD Rom alongwith the letter of "stop payment".
8/10 CR No.33/1710. In this regard, it may be relevant to mention here that the petitioner right from the beginning has put forth the defence that he had handed over the cheque in question to said Deepak Sehrawat, which has been misused by the respondent but neither Deepak Sehrawat was cited as a witness nor he was summoned. The petitioner now want to place on record and prove the alleged conversation which took place on the mobile phone between the aforesaid persons including the petitioner; but no details have been given as to which the date, time and place the alleged conversation took place between aforesaid parties and what is the relevancy of said conversation. Petitioner also impliedly want to summon the aforesaid persons, because without getting them summoned and getting their admitted voice recorded on the another CD Rom, and thereafter got compared with the disputed voice of aforesaid persons contained in the CD Rom annexed with this petition from the FSL to test the veracity and genuineness of the CD Rom in question, the contents of this CD Rom cannot be proved. Had the petitioner being fair to his defence, he would have summoned aforesaid person as witness which petitioner knowingly failed to summon. Therefore, this alleged CD has no relevance to the controversy involved in the present case in as much as the persons whose voice is alleged to be recorded were never proposed to be witnesses by petitioner. Otherwise, it appears to be a tool used by the petitioner to prolong the trial. In addition to it, it may be noted here that application of the petitioner was shorn of 9/10 CR No.33/17 details in as much as the petitioner has failed to disclose the facts of this CD Rom before the trial court in the application u/s 311 Cr.P.C. and only prayer was to recall DW1 only but by way of this petition he has set up a new case.
11. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
12. 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.
Copy of this order be sent to the Ld Trial court for the purposes of record and this file be consigned to record room.
Announced in the open court today, On 31st Day of July, 2017.
(Dr. V.K. DAHIYA) SPECIAL JUDGE : CBI (PC ACT) DWARKA COURTS/31.07.2017 10/10 CR No.33/17