Himachal Pradesh High Court
Kiran Sharma vs Brinda Jewellers on 26 April, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MMO No. 32 of 2017 Reserved on 18th April, 2017 .
Date of Decision: 26th April,2017
Kiran Sharma ......Petitioner
Versus
Brinda Jewellers ..... Respondent
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge Whether approved for reporting?1 No For the Petitioner: Mr. G.R. Palsra, Advocate.
For the respondent: Mr. Vivek Sharma, Advocate.
Chander Bhusan Barowalia, J The present petition is maintained by the petitioner under Section 482 Cr.P.C. for quashing the order dated 29.12.2016, passed by the learned Sessions Judge, Mandi, District Mandi, H.P., in Revision Petition No.14 of 2015, affirming the order of learned Chief Judicial Magistrate, Mandi, H.P., dated 18.9.2015, passed in Cr.M.A. No.380 IV/15, in private Complaint No.237-III/15, dis-allowing the application 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 2under Section 311 Cr.P.C. filed by the petitioner. A prayer has been made to allow the application of the applicant (hereinafter to be called as "the petitioner") and re-call the .
complainant for her cross-examination.
2. Briefly stating the facts giving rise to the present petition are that the complainant/respondent had filed a complaint under Section 138 of Negotiable Instruments Act, 1881, against the accused/petitioner on the ground that the accused visited the shop of the complainant on 24.3.2012 and after selecting the ornaments, the complainant purchased ornaments worth Rs.3,00,000/- and requested the complainant to make the payment through cheque. It has been alleged that since the accused was well conversant with the complainant, he accepted the request of the accused to receive the payment through cheque. It is also alleged that in lieu of the consideration of price of ornaments and in order to discharge her legal liability, the accused has issued two post dated cheques bearing No.364583, dated 26.3.2012, amounting to Rs.1,50,000/- and cheque No.364584, dated 6.4.2012, amounting to Rs.1,50,000/- of Indian Overseas Bank, Branch, Mandi, H.P. in favour of the complainant. The aforesaid cheques, which were issued by the accused/ petitioner were presented by the complainant for payment to the Indian Bank, ::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 3 Mandi Branch, through his Banker i.e. Bank of India, Mandi Branch, within the period of its validity, but the cheques issued by the accused were dishonored by the bank of complainant on .
the ground "Funds Insufficient" and the complainant was accordingly informed to the effect by his banker. The complainant, thereafter, issued a notice to the accused/petitioner through his counsel by registered post informing her to make the payment within the stipulated period but despite it, the accused did not make payment. Upon which, a complaint under Section 138 of Negotiable Instruments Act was filed against the accused in the trial Court.
3. It has further been alleged that the evidence was led by the complainant and the cognizance was taken against the accused for the said offence to which she (petitioner) pleaded not guilty.
4. Before examining any defense evidence, the petitioner has moved an application under Section 311 Cr.P.C.
before the learned Court below for summoning the complainant for further cross-examination, which was dismissed.
Thereafter, a revision petition bearing No.14 of 2015 was maintained by the petitioner before the learned Sessions Judge, Mandi, H.P., which was also dismissed, hence, the present petition.
::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 45. The learned counsel for the petitioner has argued that as the facts with regard to the title of the complaint that he could not sell the Gold, at the relevant time, it has come to .
the notice of the petitioner now and in the interest of justice, the application was required to be allowed, as it is only the complainant, who can answer the question with regard to the alleged selling of gold when he was not having permission to sell the gold and the truth will be discovered.
6. On the other hand, the learned counsel for the respondent has argued that the petitioner was to lead her defense evidence, but in spite of leading evidence, she has chosen a method to delay the proceedings by making the present application under Section 311 Cr.P.C., which is without any basis, as she has already cross-examined the complainant at length and the present application was moved only to delay the proceedings and the same be dismissed.
7. To appreciate the arguments of the learned counsel for the parties, I have gone through the record carefully.
8. As per the petitioner, the petitioner/accused moved an application under Section 311 Cr.P.C. to re-summon and re-cross examine the complainant and as has also got an information on 4.6.2014 from the A.E.T.C., Mandi that the firm of the complainant was not dealing in the business of gold ::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 5 ornaments prior to 28.4.2012. Therefore, it has been alleged that to this effect the complainant has to be re-examined.
Further, it has been alleged that there is variation between the .
pleadings and documents on the record, as well as, there are omissions, material contradictions and improvements in the evidence of complainant, but the earlier counsel of the petitioner could not put question in cross-examination to the complainant in its right perspective and in the absence of non-
examination of complainant qua the aforesaid facts, the right of petitioner stands materially prejudiced and re-examination of the complainant is necessary to elucidate the truth.
9. It has further been alleged that the application was opposed by the complainant on the ground that the application has been filed just to delay the proceedings. He denied that he was not having business of gold ornaments prior to 28.4.2012. It has also been contended that the complainant has been dealing in gold and silver ornaments since 2009 and used to pay VAT to the Sales Tax Department on the gold ornaments and Assessing Authority has also passed assessment orders and the information supplied to the petitioner by the E.T.O., Mandi, H.P. is incorrect. To substantiate his plea the complainant also filed on record copies of assessment orders passed by the Assessing Authority of Excise & Taxation Department, Mandi. He also ::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 6 explained that the bill book was printed earlier when he was conducting business at Jawahar Nagar, Mandi Town, but lateron, his business was shifted to Seri Bazar, Mandi Town, H.P. .
10. From a bare perusal of the record, it is clear that the complaint is pending adjudication since the year 2011. The petitioner was having sufficient opportunity to cross-examine the witnesses. Now, the petitioner wants to cross-examine the complainant to take a new defense, which in law, is not permissible. From the record, it is also clear that the petitioner was having ample opportunity to cross-examine the complainant and now the petitioner wants to cross-examine the complainant merely to have another defense. If such application is allowed, then there will be no end to cross-examine/re-cross-examine the witnesses. Further, there is also ample opportunity to the petitioner to lead her evidence, as yet only the statement under Section 313 Cr.P.C. has been recorded. This Court finds that the application of the petitioner filed before the learned Court below, was without merits and has been rightly dismissed by the Courts below. At the same point of time, the jurisdiction under Section 482 Cr.P.C. is to be exercised in the rare cases and the present case is not a rare case.
11. In view of the submissions made hereinabove and after taking into consideration all the material on record, this ::: Downloaded on - 27/04/2017 23:59:41 :::HCHP 7 Court finds that the petitioner has no case in her favour. So, the petition is devoid of any merit and deserves dismissal. Hence, the same is dismissed accordingly.
.
12. The parties are directed to appear before the learned trial Court on 23rd May. 2017. Pending application(s), if any, also stand disposed of.
(Chander Bhushan Barowalia)
th
26 April, 2017 Judge
(M.gandhi)
r to
::: Downloaded on - 27/04/2017 23:59:41 :::HCHP