Chandrakant S/O. Kisanrao ... vs Dayaram S/O. Marotrao Choudhari
2017 Latest Caselaw 7145 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR


                  CRIMINAL WRIT PETITION NO.801 OF 2016

Chandrakant s/o Kisanrao Bhurkunde, 
aged about 56 years, occupation :
business, r/o 259, c/o R.S. Shashtri, 
besides Adv. Anand Parchure, Ram Nagar,
Nagpur-440033.                                             ...            Petitioner
                        - Versus -
Dayaram s/o Marotrao Choudhari, 
aged about : major, occupation : 
cultivator, r/o Bhande Plot, Nagpur.                       ...            Respondent
                                   -----------------
Shri V. Awchat, Advocate for petitioner. 
Shri C.F. Bhagwani, Advocate for respondent. 
                                   ----------------
                  Date of reserving the judgment       :  08/09/2017
                  Date of pronouncing the judgment :   14/09/2017

                                          CORAM :   P.N. DESHMUKH, J.
                                          DATED  :   SEPTEMBER  14,  2017
                          
JUDGMENT  :

Rule, returnable forthwith. Heard finally by consent of

Shri Awchat, learned Counsel for petitioner, and Shri Bhagwani,

learned Counsel for respondent.

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2)               Challenge   in   this   petition   is   to   order   dated   21/9/2016

passed by learned Judicial Magistrate, First Class, Court No.26,

Nagpur in Summary Criminal Case No. 26222/2012 by which

application filed by petitioner/accused for recalling witness under

Section 311 of Code of Criminal Procedure came to be rejected.

3) It is the specific case of petitioner that the disputed

cheques were issued by him to one Adv. Madan Senad from whom

he had obtained hand loan in 2005 as security deposit along with

other receipts, which are misused by complainant in the year

2008-09 and a complaint is filed against petitioner under Section

138 of the Negotiable Instruments Act. It is the further case of

petitioner that as earlier Counsel appearing for him has not

conducted cross-examination of complainant properly, i.e. by not

bringing on record his case since not suggested to complainant, it is

necessary to recall complainant for further cross-examination.

However, application made to that effect at Exh. 72 came to be

rejected.

4) Shri Awchat, learned Counsel for petitioner, has

submitted that learned trial Court has not decided the said

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application on merits, but has rejected the same noting that same

was filed after a gap of about three years after complainant's cross-

examination was concluded by his previous Lawyer on 18/12/2013

and trials under Section 138 of Negotiable Instruments Act are

required to be decided expeditiously. It is thus the case of petitioner

that learned trial Court has not considered his application on merits

and though such powers are required to be exercised judiciously and

with extreme care and caution, learned trial Court has failed to abide

by same by rejecting the application only on the ground that same is

filed belatedly as aforesaid. In support of his submissions, learned

Counsel for petitioner has relied upon the decision of the Hon'ble

Apex Court in the case of P. Sanjeeva Rao vs. State of A.P.

(2012(4) Mh.L.J. (Cri.) 442)

5) Shri Bhagwani, learned Counsel for respondent, has

supported the impugned order contending that no interference is

called for. In support of his submissions, learned Counsel for

respondent has relied on the decision of the Hon'ble Apex Court in

the case of Rajaram Prasad Yadav vs. State of Bihar and another

{(2013) 14 SCC 461}.

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6)               In the case of  P. Sanjeeva Rao  (supra), it is laid down

that mistake committed by appellant's Counsel should not result in

the accused suffering a penalty totally disproportionate to the gravity

of error committed by his Lawyer. Facts in that case were that in a

trial of accused under the provisions of Prevention of Corruption

Act, cross-examination of P.W.1 and P.W.2 was not conducted and

no formal application was filed by accused nor even an oral prayer

was made before learned trial Court keeping his right to cross-

examine alive till the evidence of Trap Laying Officer was recorded.

The Counsel appearing for accused filed his personal affidavit in

which he stated that even though there was no formal prayer made

to that effect, he intended to cross-examine said two witnesses after

the evidence of Trap Laying Officer was recorded. In the peculiar

circumstances, Court granted permission to recall said two witnesses

for their further cross-examination observing that two prosecution

witnesses were not cross-examined by the Counsel for the appellant

not because there was nothing incriminating in their testimony

against the appellant, but because Counsel for the appellant had

indeed intended to cross-examine them after the Trap Laying Officer

had been examined and thus, it is held that merely because a

mistake was committed by Advocate on record, that by itself should

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not result in accused suffering a penalty totally disproportionate to

the gravity of error committed by his Lawyer. Denial of an

opportunity to recall the witnesses for cross-examination would

amount to condemning the appellant without giving him the

opportunity to challenge the correctness of the version and the

credibility of the witnesses.

7) In that view of the matter, it is, therefore, found that in

the case relied by learned Counsel for petitioner, opportunity was

granted to cross-examine P.W.1 and P.W.2 by recalling them as they

were admittedly not cross-examined as learned Counsel for accused

though wanted to cross-examine them after evidence of Investigating

Officer would be recorded, had not placed on record any such

application nor made oral request to keep such right in existence and

in the circumstances, noting as above, permission was granted. In

the background of facts as aforesaid, when the case of petitioner as

revealed from the record is considered, it is found that in paras 4

and 5 of the reply dated 29/10/2012 given by petitioner to the

notice from respondent/complainant, he had specifically put forth

his defence that the disputed cheques, reference of which was made

in the notice, were issued by him to Adv. Madan Senad, who was

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carrying on money lending business, sometime in the year 2005

along with blank cheques, blank signed papers and hundi as security

deposit. It is further contended that as there was dispute regarding

payment of interest, Adv. Madan Senad misappropriated blank

stamp papers and prepared a forged agreement to sell on those

documents and based on such forged agreement to sell, had filed

suit against petitioner for specific performance of contract and in

that suit had also made reference to said post dated cheques. As

such, it is the specific case of petitioner in his reply that cheques

given to Adv. Madan Senad as security as aforesaid in the year 2005

were misused by respondent in the year 2008 by filing a false

complaint under Section 138 of Negotiable Instruments Act.

8) In view of case of petitioner as aforesaid, on perusal of

evidence of complainant, it is noted that petitioner has cross-

examined respondent/complainant on above aspect at length and is

in fact found to have suggested his case as has been set out in reply

to the legal notice. In fact, it is also suggested to complainant that

he knows Adv. Madan Senad, which suggestion is denied by him.

Complainant has further denied if there are any civil suits pending

between petitioner and Adv. Madan Senad. It is denied that

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disputed cheque nos. 308147 and 308148 were issued by petitioner

to Adv. Madan Senad, which were misused by complainant. In view

of evidence as aforesaid, it is found that complainant is duly cross-

examined by petitioner on the lines of his defence as has been set

out by him.

9) In the case of Hanuman Ram vs. State of Rajasthan and

others {(2008) 15 SCC 652}, which is relied in the case of

P. Sanjeeva Rao (supra), Hon'ble Supreme Court while considering

the object of Section 311 of Code of Criminal Procedure has

observed as follows :

"This is a supplementary provision enabling and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons

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either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the Section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (emphasis supplied).

10) Having considered law laid down as aforesaid and facts

involved in the petition, since it is found that petitioner has cross-

examined complainant on the lines of his defence, by no stretch of

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imagination, it can be said that by rejecting his application for

recalling of complainant, trial Court has caused failure of justice or

has failed to bring on record valuable evidence.

11) Shri Bhagwani, learned Counsel for respondent, in

support of his submissions opposing the petition has relied on the

decision in the case of Rajaram Prasad Yadav (supra) wherein

Ho'ble Apex Court has laid down principles to be followed by the

Court while considering such application. On considering the same,

it is noted that the paramount consideration is just decision of the

case and for that purpose, essentiality of person to be recalled and

re-examined has to be ascertained. On considering the principles,

which are laid down from (i) to (xiv), it is noted that power under

Section 311 of Code of Criminal Procedure 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.

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12)              Having considered law as aforesaid and facts involved in

the petition, the petition is devoid of any merit and hence, the same

is dismissed. Rule is discharged. No order as to costs.

JUDGE

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