Uttarakhand High Court
Ram Ratan Singh Bisht vs State Of Uttarakhand And Another on 7 September, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 1587 of 2022
(Under Section 482 of Cr.P.C.)
Ram Ratan Singh Bisht ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
Advocate: Mr. Saurabh Kumar Pandey, Advocate, for the applicant.
Mr. V.S. Rathore, AGA, for the State.
Hon'ble Sharad Kumar Sharma, J.
Before venturing into the legal implications over the controversy, which has been raised in the present C482 Application, some basic facts are necessarily required to be referred to. It couldn't be in controversy that a complaint case, being Complaint Case No. 5113 of 2013, Anil Kumar Nandwani Vs. Ram Ratan & another, for trial under Section 138 of the Negotiable Instruments Act, 1881 stood instituted as back as on 12th March 2013 before the Court of Additional Civil Judge (Junior Division)/ Judicial Magistrate, Haldwani, District Nainital.
2. The said matter proceeded and during its pendency, the present applicant had filed an application on 24th January 2018, invoking the provisions contained under Section 311 of the Code of Criminal Procedure, for the purposes of summoning the documents, as well as, the accused person, which stood rejected by the Court below, vide its impugned order dated 15th November 2018. Thereafter, rejection of the application, the proceedings attained the stage 2 of Section 313 of CrPC, which was conducted on 14th August 2019, on account of inaction on part of the opposite party to lead his defense, which was closed by the learned trial Court vide its order dated 25th February 2020 and the date was fixed as 29th February 2020 for decision on the aforesaid complaint case for the offences under Section 138 of the Negotiable Instruments Act.
3. Against this order dated 25th February 2020 directing the closure of an opportunity to lead evidence, a Revision, being Criminal Revision No. 33 of 2021 Ram Ratan Singh Bisht Vs. State of Uttarakhand and Another; was preferred before the District and Sessions Judge, Nainital. The Revision thus preferred by the present applicant was allowed by the judgement dated 6th April 2021, whereby his closure of opportunity to lead the evidence was set aside and the learned trial Court was directed to fix a date for the purposes of adducing evidence of the revisionist, the relevant part of the revisional Court's order is extracted hereunder:-
"The said criminal revision is allowed. The impugned order dated 22.02.2020, passed by learned Civil Judge (J.D.)/J.M. Haldwani, District Nainital, in Criminal Case No. 5153 of 2013 titled as Anil Kumar V. Ram Ratan and another, is hereby set-aside. The trial Court is directed to fix a date for the purpose of adducing defence evidence and after that proceed with the case as per law. However, it the revisionist/accused does not adduce defence evidence on the date fixed, the trial Court will be at liberty to proceed further with the case in accordance with law."3
4. It is appropriate to remark at this stage, that the order of rejecting the application under Section 311 of CrPC, by the learned trial Court by an order dated 5th November 2018, has attained finality, as it has not been challenged and hence it cannot be further a dispute, that the proceedings had reached to the stage of Section 313 of the Code of Criminal Procedure. It is at this belated stage of the complaint proceedings, that the present applicant had filed an application on 1st November 2021, being an application under Section 143 of the Negotiable Instruments Act, to be read with Section 91 of the Code of Criminal Procedure, for recalling of the witness PW1.
5. It would be necessary to extract the relief sought for in the said application, which was two folds:-
(i) PW1 may be recalled for re-examination;
(ii) To produce the entire ledger account till 25th February 2012.
6. It is this application which was filed under Section 91 of the Code of Criminal Procedure, to be read with Section 143 of the Negotiable Instruments Act, which has been rejected by the Court of Additional Chief Judicial Magistrate (Railways), Haldwani, District Nainital in Criminal Case No. 5113 of 2021, Anil Kumar Vs. Ram Ratan and another, which is under challenge in the present C-482 Application.
7. The procedural law governing the regulation of a proceeding under a special statute, is subject to 4 attraction of the strict procedural law to be made applicable, in a proceeding drawn under a special Act, and that too, particularly, when the proceedings relate to the provisions of Negotiable Instruments Act. It contemplates that under either of the provisions contained under Section 142, 142A and 143 of the Act, under either of the circumstances the proceedings under the Negotiable Instruments Act, are to be regulated by the provisions contained under Chapter 17 of the said Act, though each of the provisions, which have been referred to herein above, are independent in its existence and application than to the provisions of the Code of Criminal Procedure and rightly so, since Negotiable Instruments Act, since being a special Act, which will have its own internal governing mechanism to decide the proceedings under the said Act as it happens to be self contained procedural provisions.
8. This Court is of the view, that the effect of allowing of the Revision, preferred by the present applicant by the impugned judgement dated 6th April 2021, which was resulting to setting aside of closure of his evidence and thereafter filing of an application dated 1st November 2021, would be in apparent violation of Section 143 of the Negotiable Instruments Act, which has been given, an overriding effect to the provisions of the Code of Criminal Procedure. A reference of Section 143 becomes relevant for consideration, because once it starts with non- obstinate clause and its objective is to conduct a summary trial of the complaint proceedings under 5 Section 138 of the Negotiable Instruments Act, the strict procedural law under the Code of Criminal Procedure cannot be borrowed to be attracted and made applicable in order to cloud the very purpose of Section 143 of the Negotiable Instruments Act, which has been given an overriding effect to the provisions of the procedural law of the Code of Criminal Procedure. The provision of Section 143 of the Negotiable Instruments Act is extracted hereunder:-
"143. Power of Court to try cases summarily.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
9. This Court of is of the view, that filing of a belated application under Section 91 of CrPC, after allowing of the Revision by the judgement dated 6th April 2021 by 6 filing the same on 1st November 2021 by attracting the provisions contained under Section 91 of the Code of Criminal Procedure and Section 143 of the Negotiable Instruments Act, would be in violation to the teeth of the provisions contained under Section 143 of the Negotiable Instruments Act itself. Hence, this is one of the reasons for the rejection of the application would be justified.
10. Looking to the controversy from yet an another complexion, and which too has constituted as to be a reason for the Court to decline to entertain the application preferred by the applicant under Section 91 of the Code of Criminal Procedure to be read with Section 143 of the Negotiable Instruments Act is with regard to an interplay impact of Section 311 of the Code of Criminal Procedure and the intention of Section 91 of the Code of Criminal Procedure. Section 91 of the Code of Criminal Procedure is extracted hereunder:-
"91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or 7
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
11. Thereafter, the reference of Section 311 of the Cr.PC, at this stage, becomes relevant and inevitable, which is extracted hereunder:-
"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
12. The Code of Criminal Procedure, in case if the provision contained under Section 91 of the Code of Criminal Procedure is taken into consideration, it had a different objective altogether to be met with since it fell under sub clause (a) of chapter 7 "summon to produce documents or other things".
13. Meaning thereby, Section 91 of the Code of Criminal Procedure was exclusively only confined for the purposes of producing a document, which would be or may be relevant for the purposes of a substantive effective trial, where the document, which is being sought to be placed on record, has got credible relevance for its consideration for deciding the proceedings and that too, bearing in mind when it is trying to be attracted in the complaint proceedings under Section 138, which is summary in nature.
14. The provisions of Section 91 of the Code of Criminal Procedure, as it has already been observed 8 above, and as per the view of this Court too, since it legislatively confines to summoning of a document or other things which has been specifically, referred to in the provision, the same cannot be borrowed by the applicant by filing an application on 1st November 2021, under Section 91 of the Code of Criminal Procedure to be read with Section 143 of the Negotiable Instruments Act, for the purposes of requesting the Court, ceased with the trial to summon PW1 for his re-examination.
15. Summoning of a witness for the purposes of re- examination is not the purpose and intention of Section 91 of the Code of Criminal Procedure, the same cannot be utilised alternatively to pray for to summon PW1 for his re-examination, because re-examination of a witness exclusively falls within the domain of the provisions contained under Section 311 of the Code of Criminal Procedure, which is a field which stands covered by procedural law, which has already been extracted above. In that eventuality, the resort to Section 91 of the Code of Criminal Procedure, it cannot be taken to or resorted to as a substitute to summon a witness for re-examination in order to dilute the order dated 15th November 2018, where the applicant's application under Section 311 of CrPC already stood rejected and the rejection order had attained finality. In fact, the device carved out by the applicant by filing an application under Section 91 of the Code of Criminal Procedure to read with Section 143 of the Negotiable Instruments Act, was an alternative clever device, 9 adopted by the present applicant to override the impact of rejection of his application under Section 311 of the Code of Criminal Procedure for the purposes of summoning of a witness for re-examination, which stood rejected as back as on 15th November 2018, and which had attained its finality.
16. Under the procedural law, when intention of Section 91 and Section 311 of the Code of Criminal Procedure; are absolutely distinct in its applicability to one another, the applicant cannot be permitted to interblend the two provisions by reading Section 91 of Cr.PC, as a substitute provision to the provision contained under 311 of the Cr.PC, and that too, particularly, when it will have a bearing of an overriding effect of an unchallenged order dated 15th November 2018 which was passed on his application for re-examination of witness under Section 311 of the Code of Criminal Procedure.
17. Hence, this Court is of the view, that under the garb of filing of an application under Section 91 of the Code of Criminal Procedure, for the purposes of summoning of a document, it cannot be alternatively extended to be utilised to summon a witness for the purposes of re-examination. Hence, the application under Section 91 of the Code of Criminal Procedure, with its principal relief and intention, to re-examine PW1 was a misconception at the hands of the applicant.
1018. The learned counsel for the applicant, at a later stage, has attempted to address the Court on Section 145 of the Negotiable Instruments Act, in the light of the provisions contained under sub Section (2) of Section 145 of the Negotiable Instruments Act, 1881, which is extracted hereunder:-
"(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
19. Even this Section 145 of the N.I. Act too, starts with a non-obstinate clause. Meaning thereby, Section 145 has been given an independent status in its existence and is not be clouded by the provisions contained under the Code of Criminal Procedure, and that too, particularly, when the intention of Section 145 only confined for the purposes of leading evidence by way of "affidavit".
20. The reference of term "affidavit", yet again cannot be a substitute to be invoked for the purposes of production of a document under Section 91 of the Code of Criminal Procedure or for the purposes of re- examination of a witness under Section 311 of the Code of Criminal Procedure.
21. The exemption attempted to be argued by the learned counsel for the applicant in the light of the provisions contained under sub Section (2) of Section 145, where an exclusive prerogative has been vested with the trial Court, which could be exercised on an application of the prosecution or an accused to 11 summon and examine any person, giving evidence on an affidavit, cannot be isolatedely read in exception to the order of rejection of his application under Section 311 of the Code of Criminal Procedure, and that too when the choice of summoning or re-examination under sub Section (2) of Section 145, will have no adverse bearing of Section 91 of the Code of Criminal Procedure, which is even independent to Section 145 and particularly sub Section (2) of Section 145.
22. In that eventuality and for the reasons, which has been assigned by this Court, that the application under Section 311 of CrPC of the present applicant stood rejected on 15th November, 2018, and that his evidence stood closed by an order dated 15th February 2020, which though was later on though was recalled by the Revisional Court's order dated 6th April 2021, the filing of an application itself will be in apparent violation of the provisions contained under Section 143 of Negotiable Instruments Act, which, as per the opinion of this Court, has got a special status altogether, for the purposes of conducting a summary trial, as envisaged under the provisions of the Negotiable Instruments Act, and more particularly, by way of a repetition also, Section 91 of the Code of Criminal Procedure cannot be utilized as a substitute provision to a provision contained under Section 311 of the Code of Criminal Procedure, hence I do not find any apparent error on the face of the record to the order passed by the Court below on the application preferred by the applicant, which could call for an interference in 12 the exercise of my inherent powers under Section 482 of the Code of Criminal Procedure. Hence, the present C-482 Application lacks merit and the same is hereby dismissed.
(Sharad Kumar Sharma, J.) 07.09.2022 Mahinder/