Shri Govind Lal Soni vs Texmaco Ltd. And Anr.
2005 Latest Caselaw 924 Del

JUDGMENT

Manju Goel, J.

Page 1639

1. The petitioner challenges the order dated 18.8.2004 by which an application under Section 311 Cr.P.C. filed by the petitioner/accused to summon a hand-writing expert and to recall PW-1 & PW-2 for cross-examination has been rejected. On 29.1.1998, the complaint under Sections 447/406/408 IPC read with Section 630 of the Companies Act, 1956 was filed by the respondent No. 1 against the petitioner, Govind Lal Soni. As per the complaint, the complainant company is the proprietor of textiles mill known as M/s. Birla Textiles Mills Limited, Birla Lines, Kamla Nagar, Delhi-11007 and has various housing colonies at Old Birla Lines, New Birla Lines, etc. and the accused, who joined as an employee of M/s. Birla Textiles Mills on 7.6.1988 was allotted residential accommodation No. 85-A, Shivaji Lines, Shakti Nagar, Delhi-11007, on account of his employment by an allotment letter dated 1.8.1988 and could retain the accommodation only during his employment with M/s. Birla Textiles Mills. It is further stated in the complaint that the accused, Govind Lal Soni, was an employee till 3.9.1997 when his employment was terminated and, therefore, he became legally liable to hand over the vacant peaceful possession of the premises in question to the complainant. The complainant makes a prayer that the accused be directed to hand over the residential accommodation withheld by him and further that he be tried and punished in accordance with law. It may be mentioned here that there are allegations in the complaint as to how M/s. Texmaco, the complainant/respondent No. 1 herein, became the proprietor of M/s. Birla Textiles Mills and how all contracts, deeds, agreements of M/s. Birla Cotton Spinning and Weaving Mills came to be effective for and against M/s. Texmaco Ltd. Those allegations are not relevant for the disposal of the application under Section 311 Cr.P.C.

2. From the trial court record it appears that the notice under Section 251 Cr.P.C. was given to the accused/petitioner on 26.3.1999 and examination of witnesses began on 6.9.1999. The complainant's evidence was concluded on 7.1.2003. It appears that the petitioner absented from the proceedings on two subsequent dates and his statement could be recorded only on 2.5.2003. He wanted to lead evidence. defense evidence was to be produced on 19.1.2004. The petitioner instead of producing defense evidence moved an application for dismissal of the complaint. The case was then adjourned to 16.2.2004 and it was ordered that the application for dismissal of the complaint would be considered at the time of final arguments. On the next date, i.e., 16.2.2004, defense witness was not produced and an adjournment was again granted. On 9.3.2004 four defense witnesses were examined. Further Page 1640 adjournment was granted on 5.5.2004 and again on 24.5.2004. On none of the two dates any defense witness was produced. The default continued for subsequent dates also till the application under Section 311 Cr.P.C. was moved on 12.8.2004. It is contended in this application that the counsel for the accused could not properly cross-examine the complainant and his witnesses on material points and, therefore, it has become necessary to summon the witnesses again for the purpose of confronting them on various material points. Further it is contended in this application that the letter of allotment dated 1.8.1988 was not signed by him and the allotment letter is forged & fabricated and manufactured document. He contends that he is an independent lawful tenant in the quarter in question and, therefore, PW-1 & PW-2 be recalled for the purpose of cross-examination and the accused be also allowed to summon hand-writing expert in order to prove as to whether the allotment letter was forged and fabricated. This application was disposed of by the impugned order dated 18.8.2004. The trial court observed that the accused actually wanted to re-open the entire case. Since the accused himself had stated that he had gone to the office to surrender possession but could not meet anyone he thereby admitted the claim of the complainant about the liability of the accused to surrender possession on the termination of his service. The trial court observed that the application had been filed only in order to prolong the litigation and hence dismissed the application.

3. Before this court it is contended by the petitioner/accused that the learned trial court, namely, ACMM, was wrong in rejecting the application under Section 311 Cr.P.C. Reference has been made to certain authorities to support the plea.

4. On behalf of the respondent, it is submitted that there is no occasion for the petitioner to prove that the allotment letter is false or fabricated since the petitioner at no point of time disputed that he had obtained the possession over the premises in question on account of his employment with M/s. Birla Textiles Mills. The allotment letter is proved by R.L.Goel, Estate Officer of the complainant company. From the cross-examination of PW-1 it is clear that the accused/ petitioner admitted his employment with M/s. Birla Textiles Mills. In fact, he raised certain questions about the disputes pending over his dues on account of the termination of his services. He suggested that he was a lawful tenant. However, not a single question was asked to challenge the allotment on account of employment. PW-2 is the Time Keeper of the complainant company. In his cross-examination the accused referred to the same allotment letter. However, this time again the document as such not disputed. Rather an effort has been made to interpret this document in his favor. The following part of the cross-examination can be quoted:

"It is correct that the qr. (quarter) in dispute was not given on license basis as mentioned in column no. 3 of the appointment letter. vol.(volunteered) The qr. (quarter) in dispute was given to the accused on license basis as per terms and conditions of the allotment letter ex-PW1/3."

5.Subsequently when the statement of the petitioner was recorded under Section 313 Cr.P.C. one of the questions put to him is:

Page 1641 "It is further appearing in evidence against you that while being an employee of M/s Birla textile you were allotted qtr. (quarter) No. 85 A Shivaji Line Shakti Ngr. Delhi as per allotment letter Ex.PW1/3."

The petitioner answered:

"Ans. I was inducted as a tenant as per Ex.PW1/3 and rent for the qtr. (quarter) was being deducted from my salary at the rate of Rs. 50/- per month."

6. In response to the subsequent question, the petitioner further stated that Ex.PW1/3 was signed by him but the same was blank at that time.

7. After such response given by the petitioner himself, there is no occasion for the petitioner now to turn back and say that his signatures on Ex.PW1/3 was required to be examined by a hand-wring expert. Nor is there any scope to summon PW-1 and PW-2 in order to challenge his signature on the allotment letter, Ex.PW1/3.

8. I am totally in agreement with the view taken by the trial court that the only purpose of making the application was to delay the proceedings after it had reached the concluding stage. The challenge to the impugned order, therefore, must fall. The petition is dismissed.