Madhya Pradesh High Court
Goyal Exports And Import House Through ... vs Virendra on 16 September, 2019
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.31778/2019
Indore, dated:16/09/2019
Shri D.S. Patel, learned counsel for the applicant.
Shri Sandeep Choudhary, learned counsel for the
respondent.
The applicant has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'the Code') against order dated 22/07/2019 passed by Judicial Magistrate First Class, Indore in Criminal complaint No. 41049/2014, whereby the application filed on behalf of the applicant/complainant under Section 311 and 91 of the Cr.P.C. for calling the original record from the Head Office of Union Bank has been dismissed.
2. Briefly stated facts of the case are that the applicant filed a private complaint against the respondent under Section 138 of the Negotiable Instruments Act, 1881 alleging that he advanced loan amount of Rs.25,00,000/- to the respondent/accused on 28/09/2013 and the respondent issued a cheque bearing No. 286232 dated 28/09/2014 payable to Punjab National Bank, Indore for repayment of the aforesaid loan amount. The applicant submitted the cheque in question for encashment in his bank account,which was received unpaid on 29/09/2014 with a remark 'funds insufficient'. Thereafter, the applicant send a notice by registered AD mode to the respondent on 09/10/2014, which was received by him on 11/10/2014 but the respondent has not paid the cheque amount and on 20/10/2014, he send a false reply of the notice contending that his cheque No. 286232 was lost and 2 M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra he has already intimated the same to Police-station-Pardeshipura, Indore, therefore, the applicant was compelled to file the private complaint against the respondent under Section 138 of the NI Act, 1881, which was registered as Criminal complaint No. 41049/2014 before the trial Court and the notice was issued to the respondent. Thereafter, the respondent was appeared before the trial Court and took a defence that the cheque in question was lost. The statement of the complainant was recorded. The respondent examined himself as defence witness and he also exhibited letter dated 20/09/2014 issued by City Union Bank as Exh. D/1 in his defence. Respondent has also examined Alok Shukla, Branch Manager of Union Bank, Branch-Palasia, Indore and Pradeep Kumar- Branch Manger of Union Bank, Branch- Vijaynagar, Indore, who deposed that the respondent has issued the cheqe in question for renewal of CC account. In the cross- examination of Pradeep Kumar, it is brought on record that on the basis of seal affixed on Ex. D/1, he is saying that the letter regarding renewal of CC account has been issued by his bank, however, the authenticity of this document can be confirmed from the record of his Head office. After closing the defence evidence, applicant moved an application under Section 311 and 91 of the Cr.P.C. for calling the original record of Union Bank so that genuineness of Ex. D/1 can be confirmed, however, the said application was dismissed by the trial Court, which is a subject matter of challenge before this Court in the present petition.
3. Learned counsel for the applicant submitted that initially 3 M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra the respondent has taken a defence that the cheque in question was lost, however, after closing of the evidence of the complainant, the respondent/accused changed his defence by contending that he has issued the cheque in question for renewal of his CC account. The applicant has moved an application under Section 311 and 91 of the Cr.P.C. before the trial Court alleging that in order to rebut the respondents defence, original record of the Head office of the Union Bank be called, however, the trial Court has committed error in rejecting the application filed by the applicant. Under these circumstances, learned counsel for the applicant prays for setting aside of the impugned order and permitting the applicant to called for the original record of the Head Office of the Union Bank .
4. On the other hand, learned counsel for the respondent opposed the prayer by contending that the applicant evidence is closed and the case is fixed for final arguments, therefore, there is no ground available on record to permit the applicant to fill up his lacunas. Under these circumstances, learned counsel for the respondent prays for rejection of the petition.
5. Having heard learned counsel for the parties and perused the record.
6. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re- examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just 4 M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
7. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of 5 M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra facts, the ends of justice would be defeated.
8. The Hon'ble apex Court in the case of Mohanlal Shamji Soni (supra) in para 27 also observed that the Criminal Court has ample power to summon any person as a witness or recall and re- examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.
9. While dealing with Section 311 of the Code in the case of Rajendra Prasad Vs. Narcotic Cell, (1999) 6 SCC 110, the Hon'ble apex Court explained what is lacuna in the prosectuion as under:-
"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. 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. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
10. Reference must also be made to the observations of the Hon'ble apex Court in the case of Zahira Habibulla H. Sheikh Vs. State of Gujrat, (2004) 4 SCC 158, where the Hon'ble supreme court described the scope of Section 311 of the Code as under:-
"44. ....... object of the Section is to enable the court to arrive at the trust irrespective of the fact that 6 M.Cr.C. No. 31778/2019 Goyal Export & Import House Vs. Virendra the prosecution or the defence has failed to produce some evidence, which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
11. In view of the law laid down by the apex Court in the cases of Mohanlal Shamji Soni, Rajendra Prasad and Zahira Habibulla H. Sheikh (supra) and after perusal of order passed by the trial Court, I am of the opinion that truth has to be ascertained and it is the prime object of the trial. Accordingly, this petition is allowed and the impugned order dated 22/07/2019 passed by Judicial Magistrate First Class, Indore in Criminal complaint No. 41049/2014 is hereby set aside. The application under Section 311 and 91 of Cr.P.C. filed by the applicant is allowed. The trial Court is directed to call the original record from the Head Office of Union Bank, Indore and afforded opportunity to applicant to examine the witnesses regarding authenticity of the said document.
12. Let a copy of this order be sent to the concerned trial Court for information and necessary compliance.
(S. K. Awasthi)
skt Judge
Santosh Kumar Tiwari
2019.09.17 17:19:14
+05'30'