Rajasthan High Court - Jaipur
Gurucharan Singh vs Mahendra Lalwani on 17 January, 2006
Equivalent citations: RLW2006(2)RAJ881
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
JUDGMENT Gopal Krishan Vyas, J.
1. This petition under Section 482 Cr.P.C. has been filed by the petitioner seeking to challenge order dated 5.9.2005 whereby the learned Chief Judl. Magistrate, Pali was an order suo moto exercising discretion under Section 165 of the Evidence Act. By order impugned dated 5.9.2005, the complainant was directed for the production of documents after hearing final arguments on 31.8.2005. It is further ordered that the case will be finally heard again on 30.9.2005.
2. According to facts of the case narrated by the petitioner, complainant was filed by non-petitioner complainant under Section 138, Negotiable Instruments Act, read with Section 420 IPC alleging inter alia that the complainant financed for old Ambassador Car, 1990 model to the petitioner with a sum of Rs. 1,09,000/-. The said car bears Registration No. RJ-22-T-0131. The repayment of the loan amount was to be made in 25 instalments on agreed terms and conditions and, in default, it was agreed that 36 per cent interest will be charged. It is submitted by the petitioner that complainant alleged that the petitioner did not make payment according to the instalments fixed and, upon reminders given by the complainant, he gave a cheque bearing No, 1711263 dated 28.8.2001 for the Rs. 57,000/- drawn on Pali Urban Co-operative Bank Ltd., City Branch, Pali in favour of the complainant.
3. In the complaint, the complainant alleged that the said cheque was presented before the Bank for encashment, however, it was dishonoured; and, consequently, the complainant filed complaint under Section 138 of the Negotiable Instrument Act. The learned Magistrate proceeded in the matter in accordance with the procedure and recorded evidence from the side of the complainant. Two witnesses were examined on 15.7.2003 and 24.7.2004. As per allegation during the statement of complainant Mahendra Lalwani PW. 1 certain documents were got produced from the side of accused-petitioner and most of them were admitted by the complainant in the cross-examination. It is submitted that other witnesses of prosecution, however, came with altogether different version and gave different explanation for the receipt and the same was admitted by Mahendra, PW. 1.
4. It is contended that on a conjoint reading of the statements of prosecution witnesses PW. 1 and PW. 2 it reveals the fact that virtually at the documents which were got exhibited from the side of the petitioner were found proved and admitted by the witnesses. It is submitted that statement of the accused petitioner was also recorded as DW. 1 and it was specifically denied by the petitioner that the cheque for Rs. 57,000/-was given by him as alleged by the complainant. It is contended that, on the contrary, against the loan of Rs. 93,000/-, the petitioner had paid Rs. 1,68,000/- and, at the time of procurement of the loan amount he had given five blank cheques to the complainant along with one blank stamp of Rs. 100/- which have been misused by the complainant.
5. After hearing arguments in the case from both the sides finally on 31.8.2005, the learned court below fixed 5.9.2005 for pronouncement of order Court below. However, as per submission of the counsel for the petitioner, on 5.9.2005 the trial court passed impugned order whereby it has been observed that in the statement of the complainant, in his cross-examination, it has come out that he is maintaining his account day-to-day and, in the said account, the account with regard to the petitioner is also available. It is observed in the impugned order that the same has not been produced nor any excuse for the non-production of the same has been forthcoming. It is contended that the learned trial Court, knowingly that the said document was not produced by the complainant and it was not exhibited by him on his own volition, passed order to produce the record maintained by him with regard to loan account of the accused-petitioner before the Court. It is further ordered that the case is fixed for 30.9.2005 for production of the document and final arguments. The petitioner is challenging the said order on the ground that the order is absolutely illegal and without there being any justifiable occasion or reason, the Court below in judiciously exercised discretion providing uncalled for opportunity to the complainant to complete the deficiency of evidence.
6. It is contended that due to order dated 5.9.2005, the petitioner is going to suffer serious prejudice in the adjudication of the matter, the documents which have not been produced and exhibited by the complainant on his own volition should not have been ordered to be placed on record when no such application has either been moved by the complainant. Learned counsel for the petitioner contends that such exercise of jurisdiction at the stage of pronouncement of judgment at its own motion by the Court is not only injudicious but leaves the defence seriously prejudiced. It is submitted that the co-called document which is ordered to be placed on record was not produced from the prosecution side and at the time of the final arguments such document cannot be summoned because without exhibiting the document by the complainant, on his own, at the stage of final adjudication, such order passed by the Court is contrary to law.
7. Per contra, learned Counsel for the non-petitioner complainant has invited my attention towards the provision of Section 165, Evidence Act, which is reproduced hereunder:
165. Judge's power to put questions or order production.The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he. pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
It is contended that as per the a fore quoted Section 165 of the Evidence Act for the purpose of adjudication, the Judge may in order to discover or to obtain proper proof of the relevant facts, ask any question he pleases, in any form at any time, of any witness or of parties, about any fact being relevant or irrelevant and may order the production of any document and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor without the leave of the Court, make any objection to any such question or order nor without the leave of the Court, make any objection to any such question or order, nor without the leave of the Court, cross-examine any witness upon any answer given in reply to any such question. He contends that, if for adjudication of the matter, the trial Court exercises discretion and passes order even at the final stage, it cannot be presumed that the order is illegal or is not within jurisdiction because it has been passed at the time of final hearing.
8. I have perused the impugned order and also gone through the provisions of Section 165, Evidence Act. Obviously, provisions of Section 165, Evidence act vest the trial Court with special power for proper adjudication of the matter before it. But, it should not be forgotten that such special power must be exercised with judicious discretion and abundant caution. The power of the Court under Section 165 cannot be questioned nor can it be held that the power should not have been exercised at the final stage. The Court is left fee to judiciously ascertain the necessity and occasion for the exercise of discretion and absence of Bar only makes it clear that the purpose of the legislature behind enactment is to strengthen the hands of the Court for proper adjudication and substantial justice in the matter so that it should not result in miscarriage of justice.
9. It is equally important to bear in mind that exercise of discretionary powers requires abundant caution and application of judicious mind to the need or occasion for harnessing the power in the midst of the proceedings. In the instant case, the Court has passed the impugned order for production of the document after hearing final arguments and, even if in compliance of the order passed by the Court, the document ordered to be produced is filed, then too, the document cannot be taken into account for adjudication of the matter. The document ordered to be produced was neither filed nor exhibited by the complainant during the trial though the same was admittedly in possession of the complainant. The same was not chosen to be filed or exhibited on plain volition of the complainant. If for any reason, it appeared to the Court below to peep out as deficiency in the prosecution case at the final stage, the discretion has only to be exercised judiciously so as not to mar or hamper the defence of the party accused. Important aspect in criminal administration of justice is not to pre-determine the guilt of the accused but rather it is to leave open the filed for the defence to secure substantial justice.
10. In my considered opinion, though Section 165, Evidence Act confers discretion upon the Court but, at the same time, it casts duty upon the Court to exercise such discretion judiciously with abundant caution. The court must not, in normal course, pass order for placing evidence on record which is not produced by the complainant when opportunity was guaranteed to him. When, during the course of examination, the witness categorically admitted that he was maintaining day-to-day account which, inter alia, included the loan account of the petitioner the same should have been produced and exhibited being, relevant to the issue in controversy. The witness did not choose to do soon his own volition. It is not left with the Court to aid prosecution case and take steps for elimination of lacunae. This is none of the principles of administration of justice. While exercising discretionary Jurisdiction, none of the principles of safeguarding substantial justice must be lost sight of. It would only defeat ends of justice if, in the course of judicial proceedings, the defence is in any way left prejudiced. If the prosecution has come up with lacunae in its case the benefit must go to the defence. For no purpose, the Court is required to complete the deficiency of evidence which, when the opportunity was so granted to the prosecution/complainant, it was not taken care to be completed.
11. For the foregoing discussion, in the present case, after hearing final argument and the facts which were on record, after recording statement of the complainant and till the stage of final decision, no efforts were made by the complainant which is granted by the trial Court after hearing final argument is totally uncalled for. The document which can be taken into account for the purpose of adjudication after exhibiting by the witness cannot be ordered to be placed on record nor such document can be taken into account unless it is exhibited. If the document is concealed by the complainant from the proceedings then obvious presumption to be drawn goes against the complainant that at the time of giving opportunity he has not chosen to file such document. In these facts and circumstances, the only conclusion arrived at is that the Court below has not exercised discretion Judiciously keeping on mind the facts and circumstances of the case. The impugned order, therefore, deserves to be set aside.
12. Consequently, this petition is allowed. The order impugned is set aside. The trial Court is directed to decide the matter finally on the basis of material on record.