Subash Chand Barjatya vs Madhu Mishra & Anr.
2010 Latest Caselaw 939 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. REV. P. No. 563/2008

                                                     Reserved on : 18.08.2009

                                                  Date of Decision : 18.02.2010


Subash Chand Barjatya                                   ...... Petitioner
                                  Through:      Mr. H.S. Bhullar, Adv.

                                    Versus

Madhu Mishra & Anr.                                   ...... Respondents
                                  Through:      Mr. Pawan Bhal, APP for the
                                                State.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                    Yes
2.     To be referred to the Reporter or not ?         No
3.     Whether the judgment should be reported
       in the Digest ?                                 No

V.K. SHALI, J.

1. By virtue of the present petition under Section 482 read with section 397

Cr.P.C. the petitioner has challenged the order dated 8th July, 2008 passed by

Sh. Sudesh Kumar, the learned Metropolitan Magistrate, New Delhi titled M.S.

Mishra Vs. Subhash Chand Barjatya in complaint filed under Section 138 of

the Negotiable Instruments Act.

2. Briefly stated the facts of the case are that the respondent no. 2 herein

filed a complaint through Power of Attorney under Section 138 of the

Negotiable Instruments Act against the present petitioner. After recording the

statement of the petitioner under Section 313 Cr.P.C. he was given an

opportunity to adduce his evidence in his defence. The petitioner entered into

the witness box in pursuance to the provisions of Section 315 Cr. P.C. and after

testifying on oath the petitioner was cross examined on behalf of the respondent

no.2. On 15th March, 2007 and the matter was adjourned to 1st June, 2007.

Thereafter the respondent no. 2 filed an application under Section 311 Cr.P.C.

stating therein that as the accused /petitioner Subhash Chand Barjatya had

appeared in the witness box as DW-1. He testified that an investment of

Rs.75,00,000/- was made by one Abhishek Verma of M/s Infocom Digital out

of which a sum of Rs.14,00,000/- was paid to the respondent no.2 and his wife

Kiran Mishra on account of the fact that this was considered to be a lucrative

investment as it would get a higher return. Accordingly, the respondent no. 2

filed an application to enter into the witness box himself and rebut the evidence

adduced by the accused petitioner making the statement to the effect that certain

payment have been made by Sh. Abhishek Verma, M/s Infocom Digital to the

respondent no.2. This application was allowed by the learned Metropolitan

Magistrate on the ground that earlier the respondent no. 2 had filed a complaint

through his power of attorney and since the power of attorney holder had only

testified, therefore, it was necessary in the interest of justice and a just decision

of the case, to permit the respondent no. 2 to enter into the witness box as a

court witness. The learned Metropolitan Magistrate relied upon the cases of

the Apex Court in B. Chhagan Lal Dagar Vs. State 2004 SCC (Crl.) 183 and

Edar & Ors. Vs. Abid JT (2007) (IX) SC 552. It was also observed by the

learned Metropolitan Magistrate that so far as the petitioner is concerned, he

will have an opportunity to cross-examine the witnesses and accordingly the

application was allowed subject to payment of cost of Rs.5,000/- to the present

petitioner.

3. The petitioner/accused feeling aggrieved by the aforesaid order has

challenged the same by virtue of the present petition.

4. I have heard the learned counsel for the parties as well as perused the

record.

5. The main contention of the learned counsel for the petitioner is to the

effect that the impugned order is permitting the present petitioner to fill up the

lacuna in as much as he has earlier chosen to testify through power of attorney

and, therefore, the present respondent no. 2 cannot turn around and contend that

he be permitted to examine himself as a court witness. So far as rebutting the

testimony of petitioner is concerned, who himself testified as DW-1, it has been

urged that what has been testified by DW-1 is not something new but this was

already known to the respondent no. 2 and therefore, the respondent no. 2

should have been vigilant enough to cross examine the witness namely the

petitioner when he was testified as DW-1.

6. I do not agree with the contention of the learned counsel for the

petitioner that the impugned order suffers from any irregularity, illegality and

impropriety. Section 311 Cr.P.C. read as under:

"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, through 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."

7. A bare perusal of the aforesaid Section clearly show that it consists of

two parts while as the first part is discretionary and the second part is

mandatory. No doubt, there may not be a specific provision permitting the

complainant to adduce evidence in rebuttal but that does not prevent the Court

from exercising the power under Section 311 Cr.P.C. and recall for re-

examination or summon any person as a witness either on application or suo

moto of its own, if it is of the opinion that the examination or re-examination or

cross examination of the said witness will be very essential for an arrival at a

just decision of the case. In this regard, the observation passed by the learned

Metropolitan Magistrate is perfectly justified and valid that the hallmark of

exercise of power under Section 311 Cr.P.C. is as to whether such an

examination or re-examination is for just decision of the case or not. There

may be various other terminologies used for the same phrase namely „just

decision of the case‟, „interest of justice‟ or „arriving at a truth‟ but the

fundamental principle of exercise of power would remain the same whether it

would help the Court in deciding the case involving the real issue in arriving at

the truth.

8. In the instant case also the learned Metropolitan Magistrate has already

formed an opinion and observed that the examination of the witnesses is

necessary for the just decision of the case. This power which essentially has to

be exercised by the Trial Court which is in-charge of the case as a whole and

knows the facts of the case. In the present case the learned Metropolitan

Magistrate keeping the facts and circumstances of the case has chosen to

exercise the discretion in favour of the respondent no. 2 for permitting his

examination on the point which have been brought on record for the first time

through the testimony of DW-1 by permitting cross examination of the

complainant. I feel that no serious prejudice is likely to be caused to the

present petitioner because not only he will have a right of cross-examination but

also this will help the Court in arriving at a just decision. In P. Chhaganlal

Daga Vs. M.Sanjay Shaw 2003 (11) SCC 486, the Supreme Court observed

that the power to receive evidence in exercise of Section 311 Cr.P.C. of the

Court could be exercised even if evidence on both sides is closed and such

jurisdiction of the Court is directed by exigency of situation and fair play. The

only factor which should govern the Court in exercise of power under Section

311 should be whether such material is essential for the just decision of the

case. I, therefore, do not find any infirmity, illegality or impropriety in the

order passed by the learned Metropolitan Magistrate allowing the application of

the respondent no. 2 to examine the complainant/respondent no. 2 as a court

witness. Accordingly, the revision petition is totally misconceived and the

same is dismissed.

V.K. SHALI, J.

th February 18 , 2010 KP