Rajasthan High Court - Jodhpur
Kailash Jain vs M/S Manoj Equipment Pvt. Ltd on 2 April, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 976/2019
Kailash Jain S/o Late Shri Ratan Lal Ji, Aged About 71 Years,
130-A, Madhav Nagar, Maharani Form, Jaipur.
----Petitioner
Versus
M/s Manoj Equipment Pvt. Ltd., Through Director Prem Prakash
Saraswat S/o Late Shri Shivdutt Saraswat, R/o 23-A, Ramdev
Colony, Opp. Kamla Nehru Nagar, Raikabag, Jodhpur.
----Respondent
For Petitioner(s) : Mr. P.M. Vyas
For Respondent(s) : Mr. Sudhir Saruparia
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 02/04/2019 The instant criminal misc. Petition under Section 482 of Code of Criminal Procedure has been filed by the Petitioner against the order of learned Metropolitan Magistrate No.9, Jodhpur Metropolitan dated 04.2.2019 whereby the application filed by the petitioner under Section 311 Cr.P.C has been rejected.
Counsel for the petitioner submits that the petitioner wants to prove the original copies of the documents mentioned in the application and it can be proved by calling the representative/partner of the company before the court. Earlier also, the petitioner had filed an application under Section 311 Cr.P.C. before the trial court and same was dismissed against which the petitioner filed S.B. Criminal Misc. Petition No. 1622/2018 which was decided by this Court on 18.09.218 with following observations :-
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(2 of 6) [CRLMP-976/2019] "In light of such observations, the present petitions are partly allowed and while quashing and setting aside the impugned order dated 17.01.2018 passed by learned Metropolitan Magistrate No.9, Jodhpur Metropolitan, the matter is remanded back to the learned court below with a direction to re-examine the matter after carefully perusing the documents annexed with the application. However, if the learned court below allows the application under Section 311 Cr.P.C. then the learned court below shall give an opportunity to the respondent to lead appropriate evidence regarding the document in question. It is made clear that the impugned order dated 05.07.2018 closing the defence evidence shall not preclude the learned court below to give aforesaid opportunity to the respondent to lead appropriate evidence regarding the documents in question, in case, the application under Section 311 Cr.P.C. is allowed by the learned court below." It is argued that in pursuance of aforesaid order, the trial court heard the petitioner on application under Section 311 Cr.P.C but again rejected the same without assigning any cogent reason by observing that the petitioner only wants to delay the matter. Learned Counsel submits that if the said witness is not called in evidence, it would tantamount to denying fair opportunity of defence to the Petitioner. In these circumstances, the application under Section 311 Cr.P.C. may be allowed.
Per contra, learned counsel for the respondent opposed the misc. petition and argued that petitioner has been purposely (Downloaded on 27/06/2019 at 10:10:28 PM) (3 of 6) [CRLMP-976/2019] delaying completion of trial. The matter is pending since 2011 and this application under Section 311 Cr.P.C has been submitted by the petitioner in the year 2017. In the order passed by the trial court, it has been clearly mentioned that on 16.05.2017, the counsel for the petitioner completed the cross-examination while reserving the cross-examination for documents. Later on, cross- examination was concluded. Thereafter, the statement of accused was recorded on 31.08.2017 and matter was fixed for defence evidence on 11.09.2017 and on that day, petitioner filed the application under Section 311 Cr.P.C. The said application was decided on 17.1.2018 and matter was fixed for defence evidence but no defence evidence was produced upto 05.07.2018 and on that day, the defence evidence was closed and matter was fixed for final arguments. In these circumstances, the trial Court was justified in rejecting the application filed by the petitioner and therefore, the misc petition may be dismissed.
I have perused the impugned order and heard rival contention of the parties. As is evident from the impugned order, the complaint under Section 138 of the Negotiable Instruments Act was filed way back in the year 2011 and the application under Section 311 Cr.P.C has been filed only on 11.09.2017. The said application was decided on 17.1.2018 and matter was fixed for defence evidence but no defence evidence was produced upto 05.07.2018 and on that day, the defence evidence was closed and matter was fixed for final arguments. Thus, the trial court in the impugned order has referred to all the relevant date and came to the conclusion that the petitioner is trying to delay the matter on one ground or other.
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(4 of 6) [CRLMP-976/2019] Hon'ble Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid down following principles while dealing with application under Section 311 Cr.P.C:-
"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) 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 re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
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.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the 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.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
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g) 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.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, 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.
k) The Court should be conscious of the 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.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (Downloaded on 27/06/2019 at 10:10:28 PM)
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n) The power under Section 311 Cr.P.C. 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 circumspection. 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."
Thus, it is a a well-settled principle of law that if the trial court is of the opinion that recording of evidence of a particular witness or recalling the witness for further examination is essential for just decision of the case, it has wide discretion to conduct such exercise. However, in view of the the observations made by Hon'ble Supreme Court at points No. (e), (f), (i), (j) and (k), it is clear that the trial court has not committed any error in refusing to exercise the jurisdiction under Section 311 Cr.P.C. Hence, this criminal misc. petition being bereft of merit, is hereby dismissed. The stay petition is also dismissed.
(MANOJ KUMAR GARG),J 261-BJSH/-
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