The single judge bench of Justice Jasjit Singh Bedi of the Punjab and Haryana High court in the case of Sucha Singh V Dharam Singh it was held that if granting an application under Section 311 Cr.P.C. amounts to filling a gap, that fact is a secondary factor, and the Court's decision on the application should be based only on the test of the essentiality of the evidence.
BRIEF FACTS
The factual matrix of the case is that the complainant filed a complaint under section 138 of the negotiable instrument act as the respondent took a loan and after that when he issued a cheque in the interest of discharging his legal liability, the cheque got dishonored and the present petition under Section 482 Cr.P.C. is for
setting aside the order passed by the learned Sub Divisional Judicial Magistrate, Nabha, whereby the application filed by the petitioner/complainant under Section 311 Cr.P.C. for placing on record the bank statement of the petitioner/complainant in the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act.
The learned counsel appearing on behalf of the petitioner contended that the order was passed in a stereo-typic manner without going into the evidence on record and without actually considering the evidentiary value of the document sought to be produced. He argues that putting the aforementioned account statement on record/exhibiting it, even if it amounted to filling a gap, was necessary for a just adjudication of the case under Section 311 Cr.P.C. It is also argued that the reality of bridging a gap would remain a secondary issue in the greater context of the importance of the evidence in the facts and circumstances of the current case. At last, he thus prayed that the impugned order ought to be quashed and permission to be granted to the petitioner/complainant to place on record/exhibit the account statement as prayed for in the application under Section 311 Cr.P.C.
The learned counsel appearing on behalf of the respondent contended that the application was made to fill a gap in the complainant's case because the complainant had already been examined and cross-examined. He claims that prior to filing the application, the complainant never mentioned the statement of account showing the withdrawal of cash, some of which he claims he gave to the accused and the return of which was via a dishonored cheque. As a result, he claims that the application was relocated at a late stage, ostensibly to cover a void and that such a course is not permissible.
COURT’S OBSERVATION
The court while relying upon the judgments titled Varsha Garg Versus the State of Madhya Pradesh & others, Rajaram Prasad Yadav Versus State of Bihar held that if allowing an application under Section 311 Cr.P.C. amounts to the filling up of a lacuna then that fact in itself is a subsidiary factor and the Court’s determination of the application should be based only on the test of the essentiality of the evidence. While it is true that the right of the accused to a fair trial is constitutionally protected under Article 21 of the Constitution of India, it is the duty of the Court to allow the prosecution/complainant or for that matter the accused to correct an error in the interest of justice. In the present case, apparently, the non-production of the bank statement was an oversight. Since it is a matter of record available with the bank and not something that can be prepared at a subsequent date by the complainant, it cannot be argued that since it was not exhibited earlier, it cannot be permitted to be exhibited now. Even if allowing the application amounts to the filling up of a lacuna that fact would remain subsidiary to the larger issue of the essentiality of the evidence and fairness in the trial to all sides. If the exhibiting of the document is permitted, the accused would challenge its veracity or evidentiary value by cross-examination. Therefore, no irreparable loss shall be suffered by the accused, if the said document is permitted to be placed on record/exhibited. Even otherwise the exhibiting/placing on record of the said document is essential for the just adjudication of the case
CASE NAME- Sucha Singh V Dharam Singh
CITATION- CRM-M-42030-2021
CORUM- Justice Jasjit Singh Bedi
DATE- 29.08.2022
Read Judgment @LAtestlaws.com
Picture Source :
