Allahabad High Court
Vinod Agarwal And Another vs State Of Up And Another on 8 August, 2019
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 72 Case :- APPLICATION U/S 482 No. - 29111 of 2019 Applicant :- Vinod Agarwal And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Ajay Kumar,Meraj Ahmad Khan Counsel for Opposite Party :- G.A.,Krishna Dutt Tiwari Hon'ble Rajiv Joshi,J.
Heard Sri Meraj Ahmad Khan, learned counsel for the applicants, Sri Krishna Dutt Tiwari on behalf of the opposite party no. 2 and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 05.04.2019 passed by Presiding Officer, Additional Court, Moradabad in Complaint Case No. 190 of 2015 (Vikas Agarwal Vs. Vinod Kumar Agarwal) as well as order dated 18.06.2019 passed by Session Judge, Moradabad in Criminal Revision No. 114 of 2019 (Vikas Agarwal and another Vs. State of U.P.), under Section 138 N.I. Act, Police Station Gal Shaheed, District Moradabad.
It reflects from the record that the complainant-opposite party no. 2 filed a complaint on 28.10.2010 against the applicants for dishonouring of cheque, under section 138 of the Negotiable Instrument Act, in which the accused applicants were summoned vide order dated 30.11.2010. After summoning of the accused, his statement was recorded on 28.08.2012 and the examination-in-chief of the complainant was recorded on 17.01.2014. The witnesses of the complainant were cross-examined on 05.12.2017 & 06.12.2017. Subsequently, date was fixed for recording of the statement of the accused applicants under Section 313 Cr.P.C. but the accused did not appear before the court concerned for the purpose and sought adjournment of the case on one pretext or the other.
Recently in the year 2019 itself, an application (date of the application is not mentioned) for recalling P.W.-1 was filed on behalf of the accused applicants on the ground that some important questions were left to be asked while cross-examining the said witness, hence the said witnesses be recalled for further cross-examination. The Magistrate after considering the objection filed to the said application as well as the materials available on record, has specifically recorded a finding to the effect that the applicants are delaying the matter since 2010 on one pretext or the other and it has not been mentioned in the application as to what important points/questions were left to be asked from the P.W.-1 while cross-examining him.
It is further recorded by the Trial Court that apart from the present case, four other complaints for dishonouring of the cheques between the parties, are pending. The Magistrate has also recorded that on the direction of this Court, the advocate Mediator was appointed and on agreement of both the parties, a settlement was made but the said settlement has not been adhered to with by the applicants and accordingly the Magistrate rejected the said application vide impugned order dated 5.4.2019. The copy of the order of this Court as well as the settlement have not been annexed by the applicants alongwith this application. The relevant extract of the order of the Trial Court is quoted hereunder:
i=koyh ds voyksdu ls ;g ckr Hkh Li"V gS fd i=koyh esa ekuuh; mPp U;k;y; ds fn'kk&fnusZ'k esa i{kdkjksa dh lgefr ls ,MoksdsV ehfM;Vj Hkh fu;qDr fd;k x;k rFkk i{kdkjksa dh lgefr ls ,d elkSnk rS;kj dj ekuuh; mPp U;k;ky; ds le{k is'k fd;k x;k Fkk ysfdu mldk Hkh vuqikyu foi{khx.k@vfHk;qDrx.k }kjk ugha fd;k x;kA blds vyok ekeys dks 'kh?kz fuLrkj.k ds fy, ekuuh; mPp U;k;ky; }kjk vknsf'kr fd;k x;k ysfdu vfHk;qDr ds }kjk visf{kr lg;ksx u fd;s tkus dh otg ls i=koyh dk fuLrkj.k ugh gks ldk gS rFkk i=koyh ,d yEcs le; ls c;ku varxZr /kkjk 313 n0iz0la0 esa fopkjk/khu gS blls Hkh ;g ckr Li"V gks tkrh gS fd budk mnns'; okn dh dk;Zokgh dks fcyfEcr gh djuk gSA tgka rd izkFkhZx.k@vfHk;qDrx.k dh vksj ls izLrqr dh x;h mijksDr uthjksa dk iz'u gS rks muds rF; iz'uxr ekeys ds rF;ksa ls fHkUu gS rFkk ifjoknh ls muds fo}ku vf/koDrkx.k }kjk ifjokn okn ds rF;ksa dh ckor foLrkjiwoZd ftjg dh tk pqdh gSA ,slh fLFkfr esa ifjoknh dks izfrijh{kk ds fy, ryc fd;k tkuk U;k;ksfpr ugh gksxkA vr% izkFkhZx.k@vfHk;qDrx.k dh vksj ls fn;k x;k izkFkZuki= mijksDr fujLr fd;k tkrk gSA i=koyh fnukad 16-04-2019 dks okLrs c;ku varxZr /kkjk 313 n0iz0la0 is'k gksA After rejection of the application by the Magistrate, Revision No. 114 of 2019 was filed by the applicants against the said order, which too was dismissed by learned Sessions Judge vide impugned order dated 18.6.2019 as not maintainable on the ground that order summoning or refusing to summon the witness under section 311,Cr.P.C. is an interlocutory order within the meaning of Section 397 (2) Cr.P.C.
The order passed by the Magistrate rejecting the application under Section 311 Cr.P.C. for recalling the witnesses as well as the revisional order are impugned in the present application.
Learned counsel for the applicants submits that the revision has wrongly been rejected by the Revisional Court as the order rejecting the application 311 Cr.P.C. is not an interlocutory order but the intermediary order against which the revision is maintainable. In support of his contention he has relied upon Full Bench judgment of this Court in Case of Munna Singh @ Shivaji Singh & others Vs. States of U.P. another 2011 (3) JIC 628 (ALL) (FB). Placing reliance upon paragraph 33 onwards of the said Full Bench decision, submission of the learned counsel is that an order passed under Section 311 Cr.P.C. is an intermediary order by which the right of the accused applicants have been affected and therefore the order is revisable.
On the other hand, learned counsel for the opposite party no. 2 as well as learned A.G.A. have placed reliance upon the judgement of the Apex Court in Case of Mohit @ Sonu and another Vs. State of U.P. and another, 2013 Law Suit (SC) 520, and submitted that the application filed by the accused applicants for recalling the witness under Section 311 Cr.P.C. is without any foundation and even from the application it is apparent that the important questions which remained to be left for cross-examination from PW-1, have not been mentioned therein.
It is further contended by the learned counsel for the opposite party that the application under section 311,Cr.P.C. has been moved by the accused applicants only with a view to delay the trial and not for any other purpose, specific findings regarding which has already been recorded by the Trial Court in the order impugned.
Learned counsel for the opposite parties further contended that the rejection of application under Section 311 Cr.P.C. is not a final order but it is an interlocutory order and even the said order cannot said to be an intermediary order as no right of the accused applicants have been affected by the said order, even in the original application, it is not stated that on what grounds the applicants wanted to recall the witnesses.
In support of his contention, the learned counsel for the opposite party has placed the reliance on judgement of this Court in the cases of Ajay Dixit Vs. State of U.P. & another 2011 (75) ACC 388 , Ram Shankar Yadav Vs. State of U.P. 2010 (71) ACC 892 and the judgement of the Apex Court in Criminal Appeal No. 486-487 of 2009 Sethuraman Vs. Rajamanickam.
I have considered the rival arguments so advanced by the learned counsel for the parties and perused the record.
In the application filed by the accused applicants under Section 311 Cr.P.C. for recalling of P.W.-1, the grounds for recall have not been mentioned. Only this much is mentioned therein that some important questions were left for cross-examination from the said witness. As observed by the Trial Court, the proceedings of the complaint case for dishonouring of cheque is pending since 2010 and the witnesses of complainant have already been cross-examined in 2017 and since 2017 the matter is pending for recording of statement of the accused applicants under Section 313 Cr.P.C. which have been avoided by the accused applicants on one pretext or the other. The relevant findings in this regard as recorded by the Magistrate have already been quoted hereinabove.
So far as the question regarding the maintainability of the revision is concerned, it is stated that as per the judgement cited by the counsel for the applicants, the distinction between the two, interlocutory and intermediary would be that the former does not bring about any consequence of moment and is an aid in the performance of the final act. It does not affect any existing rights finally or to the disadvantage of either extremes. An intermediate order can touch upon the rights of the parties or be an order of moment so as to affect any of the rival parties by its operation. Such an order affecting the rights of a person or tending to militate against either of the parties even at the subordinate stage can be termed as an intermediate or an intermediary order. In this regard, relevant paragraph nos. 33 and 40 of the judgement of Full Bench decision in case of Munna Singh (Supra), are reproduced hereunder:
"33. The distinction between the two, interlocutory and intermediary would be that the former does not bring about any consequence of moment and is an aid in the performance of the final Act. It does not affect any existing rights finally or to the disadvantage of either extremes. An intermediate order can touch upon the rights of the parties or be an order of moment so as to affect any of the rival parties by its operation. Such an order affecting the rights of a person or tending to militate against either of the parties even at the subordinate stage can be termed as an intermediate or an intermediary order.
40. The difficulty again is that can such a list of illustrations be catalogued so as to confine the revisional jurisdiction in relation to such intermediate orders. Our obvious answer is in the light of what has been said in the case of Mohan Lal's case (supra) by the Apex Court that the determination of such an issue as to whether a revision would be maintainable or not would in turn depend upon the nature of the order and the circumstances in which it came to be passed. Thus it would depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation in such matters where the Apex Court and this Court has held that an intermediate order, which is not necessarily an interlocutory order, could be subjected to revision. An order not conclusive of the main dispute between the parties, but conclusive of the subordinate matters with which it deals is not a purely interlocutory order even though it may not finally adjudicate the main dispute between the parties. In our opinion therefore, a revision would not be barred under sub Section (1) of Section 397 of the Code if the orders impugned before the revising authority fall within the tests indicated hereinabove".
Similar view has also been taken by the Apex Court as in decision relied upon by the learned counsel for the applicants and there can be no dispute about it.
However, here in the present case, the order impugned rejecting the application under Section 311 Cr.P.C. does not affect any right of the accused persons as the applicants have failed to make out any case or ground for recalling the complainant witness P.W.-1. The application filed by the accused applicant appears to be totally incompetent as the necessary ingredients for recalling the witness under Section 311 Cr.P.C. are missing therein. The said application has been moved with oblique motive just to delay the proceedings of the complaint case as observed by the Magistrate in its order while rejecting the application.
The Apex Court as well as this Court in the cases mentioned above i.e. Ajay Dikshit (Supra) has specifically held that the order rejecting the application under Section 311 Cr.P.C. is an interlocutory order and no revision against the said order is maintainable, in view of the bar under Section 397 (2) Cr.P.C. In this regard, paragraph no. 4 of the decision of the Apex Court in Sethuraman case (supra) is relevant which reads as under:
"4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgement is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed."
Taking into consideration the entire facts and circumstances of the case as well as the law enunciated in the decisions of the Apex Court and this Court as indicated above coupled with the fact that present complaint proceedings are pending for the last more than nine years, in the considered opinion of this Court, I do not find any illegality or infirmity in the orders impugned passed by the Revisional Court and the Trial Court.
The application lacks merit and, is accordingly, dismissed.
Order Date :- 8.8.2019 Shivangi