Himachal Pradesh High Court
Parminder Singh vs Om Prakash on 23 June, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No. 373 of 2018 alongwith
.
Cr.MMO No. 432 of 2018
Reserved on: 22.06.2020
Date of Decision: June 23, 2020
1. Cr.MMO No.373 of 2018
Parminder Singh ...Petitioner.
Versus
Om Prakash ..Respondent.
2. Cr.MMO No.432 of 2018
Parminder Singh ...Petitioner.
Versus
Om Prakash ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr. Rajiv Jiwan, Senior Advocate with
Mr.Ajeet Sharma and Prashant Sharma,
Advocates, through Video Conferencing.
For the Respondent: Mr.L.S. Mehta, Advocate, through Video
Conferencing.
Vivek Singh Thakur, J (oral)
Petitioner herein is accused in a complaint case filed, under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act'), by respondent-complainant.
2. Petitioner-accused has preferred two petitions under Section 482 of the Code Criminal Procedure (hereinafter referred to as 'Cr.P.C.').
3. First petition bearing Cr.MMO No. 373 of 2018, titled as Parminder Singh vs. Om Prakash , has been preferred against 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 2 impugned order dated 16.05.2018, passed by learned Additional Sessions Judge-II, Solan, District Solan, H.P., in Revision Petition No.2ASJ-II/10 of 2018, titled as Parminder vs. State of Himachal .
Pradesh & another, whereby revision petition preferred by petitioner-accused against closure of his evidence in the complaint, vide order dated 02.12.2017, passed by learned Judicial Magistrate, 1st Class, Arki, District Solan, H.P., in case No.6/3 of 2013, titled as Om Prakash vs. Parminder, has been dismissed.
4. Second petition bearing Cr.MMO No. 432 of 2018, titled as Parminder Singh vs. Om Prakash, has also been filed by the petitioner-accused against the impugned order dated 24.07.2018, passed by the trial Court whereby application preferred by petitioner-accused under Section 311 Cr.P.C. for filing certain documents and examining/summoning of witness has been dismissed.
5. Complaint, by respondent-complainant, for dishonour of cheque amounting to `3,50,000/- allegedly issued by the petitioner- accused, was filed in the trial Court on 08.11.2012, wherein after service of petitioner-accused, subsequent to putting of Notice of Accusation to him, evidence of respondent-complainant was closed on 28.05.2016 and the case was listed on 30.06.2016 for recording statement of accused under Section 313 Cr.P.C., which was recorded on 24.09.2016 and on that date, on request made on behalf of petitioner-accused, opportunity to lead evidence in defence was granted to him and the case was fixed for 20.02.2017. On 20.02.2017, Presiding Officer was on medical leave and, thus, case was adjourned for proper order on 17.03.2017, on which date, case ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 3 was fixed for 24.04.2017 to record defence evidence. On 24.04.2017 petitioner-accused was not present and his application for exemption from personal appearance was allowed. On that day, .
no defence evidence was produced, rather time was sought for, which was granted and case was adjourned for 08.06.2017. Thereafter, on 08.06.2017 and 17.07.2017 neither petitioner- accused attended the Court nor any defence evidence was produced. However, on 17.07.2017, case was listed for consideration before Lok Adalat on 19.08.2017. It is pertinent to record that petitioner-accused did not attend the Lok Adalat and, thus, no amicable settlement could be arrived at between the parties and, therefore, case was ordered to be listed before regular Court for examining the defence witnesses by giving last opportunity and case was fixed for 06.09.2017. On 06.09.2017 again, one more opportunity, as last opportunity, was sought for recording defence witnesses. Accepting prayer of the petitioner- accused, case was adjourned for 06.11.2017 for recording statement of defence witnesses (DWs) to be brought on self responsibility. On 06.11.2017, petitioner-accused did not attend the Court. On that day also, no DWs were present and on request of learned counsel for the petitioner-accused, one more last opportunity was granted to examine defence witnesses on self responsibility on next date of hearing fixed as 02.12.2017.
6. On 02.12.2017, petitioner-accused attended the Court, but no defence witnesses were produced and, therefore, on the ground that despite availing various opportunities no witness was produced by petitioner-accused, his defence evidence was closed ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 4 by order of the Court and case was adjourned for hearing final arguments on 20.12.2017.
7. On perusal of record, as noted hereinabove, it reveals .
that after recording of statement of petitioner-accused under Section 313 Cr.P.C., despite having availed opportunity to lead evidence in defence, he did not appear before the Court on 24.04.2017, 08.06.2017, 17.07.2017, 19.08.2017, 06.09.2017, 06.11.2017 and lastly he appeared on 02.12.2017, but without his learned counsel and any witness to be examined in defence.
8. It is also noticeable that till 02.12.2017, no list of witnesses was ever filed by the petitioner-accused, which he intended to examine as defence witnesses.
9. Against the aforesaid order of closure of leading defence evidence, petitioner-accused had approached the Appellate Revisional Court and the said Court after considering entire facts and circumstances, has dismissed his revision petition. In the revision petition or during its pendency, petitioner-accused has not brought on record any plausible reason for not appearing before the trial Court on seven dates fixed for recording of his evidence in defence. In revision petition, petitioner-accused has claimed that on 02.12.2017 he could not produce evidence before the trial Court, as his learned counsel was not present and he had already handed over the documents i.e. Daily Diary Rapat No.22(A) dated 16.03.2012 and GD entry No.13(A) dated 13.12.2011, but his learned counsel could not produce the same and file the list of witnesses in the Court. It is further averred in the revision petition that on 02.12.2017 his learned counsel was not present in the Court ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 5 and petitioner-accused could not contact his learned counsel as his Mobile Phone was switched off and, therefore, it was canvassed that the trial Court has wrongly closed his evidence.
.
10. Plea taken in the revision petition was never taken before the trial Court nor any list of witnesses was ever filed giving details of the witnesses to be examined in defence alongwith documents sought to be produced and proved through them.
11. Petitioner-accused has tried to justify non-production of evidence in defence on 02.12.2017, but he is conspicuously silent about the reason for his absence on previous 6-7 dates fixed for recording his defence evidence and he has also failed to assign any reason for not filing list of witnesses or documents prior to 02.12.2017.
12. Considering entire facts and circumstances, learned Additional Sessions Judge-II, Solan, has rightly dismissed the revision petition preferred by the petitioner-accused against impugned order dated 16.05.2018. No material has been brought on record so as to indicate, much less to establish, that learned Additional Sessions Judge has committed material irregularity, illegality or perversity in passing the impugned order. Complaint was filed on 08.11.2012 and right to lead evidence in defence was closed on 02.12.2017 after consecutive seven absents of petitioner- accused on the dates fixed for leading his evidence in defence. Therefore, I find no ground for interference in the impugned order and accordingly Cr.MMO No.373 of 2018 must fail.
13. After dismissal of revision petition, learned Additional Sessions Judge-II, Solan, had directed the parties to appear before ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 6 the trial Court on 21.05.2018, on which date neither respondent- complainant nor petitioner-accused were present, however, their respective learned counsel had attended the Court and case was .
adjourned for arguments on 30.05.2018. The case was again adjourned for 12.06.2018, on which date, an application under Section 311 Cr.P.C. was moved on behalf of the accused-petitioner for adducing additional evidence. The said application was rejected by the trial Court vide order dated 24.07.2018, which is impugned in Cr.MMO No.432 of 2018.
14.
examining/summoning
r of
In the application filed for filing documents and witness under Section 311 petitioner-accused has stated that he intended to produce the lost Cr.P.C., reports registered in the Police Station referred supra, which according to him, were very important documents and, thus, examination of MHC Police Station, Arki, for proving these documents is necessary. It is also averred that application for production of aforesaid documents and summoning the aforesaid material witnesses could not be filed earlier due to bonafide mistake. It has been explained that there was another complaint under Section 138 N.I. Act pending between the same parties, but present complaint was fixed for examination of defence witnesses prior to the said complaint and the petitioner-accused remained under the impression that he would be filing an application for production of documents and summoning of witnesses together in both cases. But before arriving that stage in another complaint/criminal case, defence evidence was closed by the Court in present case and, thus, applicant could not file application earlier. ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 7
15. Section 311 Cr.P.C. provides that any Court, at any stage of inquiry, trial or other proceeding under Cr.P.C., may summon any person as a witness, or examine any person in .
attendance, though not summoned as a witness, or recall and re- examine any person already examined with further rider that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case.
16. Section 311 Cr.P.C. empowers the Court to summon and examine material witness(es) or examine a person present in Court even not summoned, whereas, in present case, petitioner-accused also intends to file documents. Even if, it is construed that documents can also be brought on record by invoking power of the Court under Section 311 Cr.P.C., and summoning, examining/re- examining a witness, then also prime test for bringing such evidence on record would be that such evidence must appear to the Court to be essential for just decision of the case.
17. The power, under Section 311 Cr.P.C., can be invoked by any Court, at any stage of an inquiry, trial or other proceedings, but with rider that Court shall do so if it appears to it to be essential to the just decision of the case. In the first limb of Section, wherein Court has been empowered to summon any person as a witness or examine any person in attendance or recall or re-examine any person already examined, the Legislature has used word 'may' by saying that 'any Court may'. Whereas, in the second limb which provides rider on the power of the Court given in first limb the word 'shall' has been used by Legislature providing that Court 'shall' ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 8 summon and examine or recall or re-examine any such person if his evidence appears to be essential for just decision of the case. Therefore, power to summon is discretionary, but in case Court .
intends to exercise its powers then, it is mandatory that such evidence must appear to the Court to be essential to the just decision of the case.
18. Power under Section 311 Cr.P.C. can be exercised by the Court suo motu or on an application preferred by either party to the lis. In both eventualities the evidence, so proposed to be led, must appear to the Court to be essential to the just decision of the case. Exercising of power under Section 311 Cr.P.C. by the Court suo motu, is altogether different from invoking provisions of Section 311 Cr.P.C. by a party. In case provisions of Section 311 Cr.P.C., are sought to be invoked by a party, then definitely conduct of the said party shall also be relevant for the purpose of taking decision to exercise or not to exercise the power.
19. There may be a case where party would have led evidence, but for bonafide reasons, would not have been able to lead some evidence which may be essential to the just decision of the case for any reason beyond control of the said party like non- availability or ignorance of existence of such evidence at the time of leading the evidence and in such eventuality the party may invoke power of the Court under Section 311 Cr.P.C. However, in a case where party has not led any evidence despite availing large number of opportunities and right to lead evidence has been closed by order of the Court and there is no plausible reason for not leading evidence earlier in regular manner, I doubt, in such eventuality, ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 9 power under Section 311 Cr.P.C. would be available to help such party. It is an exceptional power which would be in addition to the evidence already led, but where there is no evidence led by a party, .
for no satisfactory explanation there is no question of leading evidence invoking Section 311 Cr.P.C., more particularly when, it is not a case of the party that piece of evidence sought to be produced was not in possession or knowledge of the applicant party, rather in the present case from the evidence on record, for questions put to the complainant during cross-examination, documents proposed to be led in evidence were very much in the knowledge of the party, but neither those documents were put to the complainant at the time of his cross-examination nor were brought on record during six opportunities availed by the party to lead evidence.
20. Plea of the petitioner-accused that steps could not be taken to examine the witnesses on account of bonafide mistake also does not appear to be plausible for the reason that for about six dates fixed for recording evidence, he did not attend the Court, and it is also the fact that his learned counsel had been attending the dates and filing applications for exemption without taking any steps for leading evidence. It is not a case where the petitioner-accused was contesting in person, rather he was represented by a professional i.e. an Advocate, who is supposed to know duty of party to take effective steps to lead evidence by filing list of witnesses to be examined and documents to be relied and proved well within time at appropriate stage i.e. on fixing a date by the Court to lead evidence. It is another question that when two ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 10 criminal cases are not clubbed, how common evidence be led therein. But as no such request was ever made by the party either in trial Court or in Revisional Court, without entering into merit, I do .
not find this plea to be bonafide, as such plea has been taken for the first time in the application filed under Section 311 Cr.P.C.
21. In present case, documents sought to be brought on record are GD entry No.13(A) dated 13.12.2011 and GD entry No.22(A) dated 16.03.2012 Daily Station Diary of Police Station, Arki, photocopies whereof have been filed with the application. GD entry No.13(A) recording caption 'Missing entry' was made on 13.12.2011 on the basis of application filed by petitioner-accused, wherein it was stated that his Cheque Book has been lost containing some cheques signed therein alongwith two affidavits and, therefore, it was requested to register FIR about missing of Cheque Book and affidavits so as to avoid any misuse thereof. In GD entry No.22(A) also caption as 'Missing entry' was recorded on 16.03.2012 on the basis of affidavit submitted by the petitioner- accused stating therein that Pan Card Number alongwith Cheque Book of PNB Branch, Arki, bearing Sl.No.795880 to 795889, which were signed, had lost somewhere in the month of December 2011 regarding which report dated 13.12.2011 was entered in Police Station, Arki, but cheque numbers were not indicated therein and that petitioner-accused had tried best at his level to trace the Pan Card and Cheque Book, but could not find the same.
22. Even if, documents proposed to be led in evidence, are permitted to be brought on record, it may not be suffice to absolve the petitioner-accused from his liability, if otherwise proved on ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 11 record by the complainant, as these documents have contradiction with respect to the items lost by the petitioner-accused. Without discussing merits and demerits of these documents, I do not find .
that these documents are necessary for just decision of the case as these documents in isolation without any further corroboration of story put forth by the petitioner-accused are not sufficient to convince that these are essential for just decision of the case, as photocopies of the GD entries sought to be proved by examining police official, if taken to be true as it is, would only establish that these two reports were lodged in Police Station, Arki, at the instance of petitioner-accused, wherein he has reported missing of the Cheque Book, but this evidence would not be sufficient in itself to arrive at just and fair conclusion. In the first report, Serial Numbers of cheques of lost Cheque Book were not disclosed and it was stated that Cheque Book alongwith two affidavits was lost. Whereas, in second report, there is no reference of affidavits, but of Pan Card Number and further, Cheque Book containing cheques from Sl.No.795880 to 795889 is stated to have been lost. Normally Cheque Book starts from Odd numbers i.e. 1, 11........71, 81, 91 as the case may be. The Cheque Book would be either of ten leaves or 20 leaves and so on and last number would be even number multiple of 10. Whereas, according to missing report, lost Cheque Book was containing cheques from Sl.No.795880 to 795889. So, neither starting nor closing number is normal. Otherwise also, in absence of any document establishing reporting to the Bank that Cheque Book had been lost, would not be sufficient to believe the story of missing of Cheque Book in absence of further evidence with ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 12 respect to action taken by the petitioner-accused for reporting the matter to the Bank, which was the main Institution wherefrom the money would have been withdrawn by misusing the cheques.
.
There is no complaint by the complainant with respect to misusing of cheques. The petitioner-accused has not proposed to lead any evidence to the effect that he had ever informed his Bank about missing of his signed Cheque Book. Therefore, evidence proposed to be led in the application under Section 311 Cr.P.C., would not be sufficient to substantiate the plea taken by the petitioner-accused and the case has to be decided only on the basis of evidence led by the complainant, sufficiency and deficiency whereof, is not a question in the present case. However, from the above discussion, it can be construed that evidence proposed to be led with the application does not appear to be essential to the just decision of the case. Therefore, no case is made out for invoking powers of the Court under Section 311 Cr.P.C. Hence, second petition being Cr.MMO No.432 of 2018 also must fail.
23. For the aforesaid discussions and observations, both petitions are dismissed. However, it is made clear that any observation expressed for deciding these petitions, shall not have any bearing on the adjudication of the complaint pending before the Magistrate and any such observation made with respect to the pleadings or any other evidence of the case shall be construed to be limited for the purpose of adjudicating the present petitions. Pending application(s), if any, also stand disposed of. ::: Downloaded on - 24/06/2020 20:21:17 :::HCHP 13
Records of the Courts below be sent back immediately. Parties are directed to appear before the trial Court on 29.07.2020, through mode permissible either in person or alongwith/through .
counsel.
(Vivek Singh Thakur), Judge.
June 23, 2020
(Purohit)
r to
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