Sanjay Jalan vs Virendra Pandey
2022 Latest Caselaw 1101 Chatt

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                                                    CRMP No.357 of 2020

                                                                  NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                         CRMP No.357 of 2020
     1. Sanjay Jalan S/o Shri Biswanath Jalan Aged About 52 Years
        Regional Head Excel Tube Corporation At 23, 24
        Radhamohan Complex, Agrasen Road, Bhaisthan, Raipur,
        Civil And Revenue District Raipur Chhattisgarh.

                                                          ---- Petitioner

                                 Versus

     1. Virendra Pandey S/o Shri Kapildev Pandey, Aged About 40
        Years R/o At

       (1)    Jugnu Industries, Shop No. 209, Shubh Business
              Tower, Agrasen Marg, Bhaisthan, Raipur, CG.

       (2)    Jugnu Industries, E.W.S. 662/663, Near Raj Janki
              Mandir, Hirapur, Veer Sawarkar Nagar, Raipur, CG.

                                                         ---- Respondent



For Petitioner              Mr. Lukesh Kumar Mishra, Advocate
For Respondent              None, despite service of notice

                    Hon'ble Mr. Justice Goutam Bhaduri
                             Order on Board
2-3-2022
1.     The present petition filed under Section 482 Cr.P.C. is against
        the order dated 29-11-2019 passed by the Judicial Magistrate
        First Class, Raipur, by which the application filed by the
        petitioner under Section 311 Cr.P.C. was dismissed. In the said
        application certain document with regard to authorisation to file
        an application under Section 138 of the Negotiable Instruments
        Act, 1881 (for short 'the NI Act') along with business
        transaction to show liability incurred was sought to be
        produced.
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                                                     CRMP No.357 of 2020

2.      Facts

of this case would reveal that an application under Section 138 of the NI Act was preferred by the petitioner against the respondent wherein he was examined on 19-6-2019, thereafter, was cross-examined on 8-8-2019 and the case was fixed for argument after recording statement of accused. Subsequently, when the case was fixed for final hearing on 5-10-2019, on that date the application was filed by the petitioner under Section 311 Cr.P.C. seeking permission to produce the resolution whereby the company authorised the petitioner to file the application under Section 138 of the NI Act along with business transaction showing the liability incurred by the respondent. The trial Court dismissed the petition on the ground that it was filed at a belated stage.

3. Mr. Lukesh Kumar Mishra, learned counsel for the petitioner, would submit that he is representing the petitioner before trial Court and till date the case is not concluded.

4. Having perused the order impugned dated 29-11-2019, it appears that the petitioner proposed to file an application to produce the resolution, which authorizes him to file application under Section 138 of the NI Act before the trial Court along with other documents to show the business transaction in between the parties and show the liability incurred by the respondent. The order impugned only speaks about rejection of the application on the ground of delay and for the reason that the cross-examination has already been done wherein the petitioner was asked about non existence of billing transaction.

5. In the matter of Rajaram Prasad Yadav v State of Bihar & Anr.,1 the Hon'ble Supreme Court has laid down the principles of Section 311 with respect to the power of the Court to

1 2013 AIR SCW 4179

CRMP No.357 of 2020

summon, recall or re-examine any person. The same is quoted below :

"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C., read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it ? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under section 311, Cr.P.C., should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

d) The exercise of power under section 311, Cr.P.C., should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

CRMP No.357 of 2020

g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

h) The object of section 311, Cr.P.C., simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

j) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely to be

CRMP No.357 of 2020

tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

n) The power under section 311 Cr.P.C., 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.

6. Taking into facts of this case since the case is not concluded till date, in order to advance the cause of justice on merits and on the basis of principles laid down by the Hon'ble Supreme Court in the matter of Rajaram Prasad Yadav (supra), this Court is inclined to allow the prayer as prayed under Section 311 Cr.P.C.

7. In the instant case, the petitioner wants to file resolution.

Irrespective of the fact of such resolution what would be held in the merit even if that is allowed to be produced, no prejudice would be caused to the respondent. Apart from the fact if the business transaction about incurring liability, supply of goods, bill and vouchers are accepted it will not cause any prejudice or harm to either parties to arrive at a truth. The other party shall also be able to get chance to lead evidence in rebuttal.

8. In view of the above, in order to meet the ends of justice and to avoid multiplicity of the proceedings, the prayer made by the petitioner is allowed. The petitioner is permitted to place on record the resolution and the business transaction/voucher. Thereafter, the parties are also allowed to adduce evidence.

CRMP No.357 of 2020

9. As a result, the present petition is allowed and the impugned order dated 29-11-2019 (Annexure - A/1) is set aside.

Sd/-

(Goutam Bhaduri) Judge

Gowri