Delhi High Court
Bir Singh vs M/S Sunbeam Engineering ... on 13 May, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No.1425/2011
Date of Decision : 13.05.2011
Bir Singh ..... Petitioner
Through: Mr. Pradeep Gupta, Adv.
Versus
M/s Sunbeam Engineering Corporation ...... Complainant
Through: None
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. (oral)
1. This is a petition filed by the petitioner against the order
dated 20.04.2011 passed by the learned ACMM by virtue of
which the application of the petitioner/accused under Section
311 Cr. P.C. for recalling /re-examination of the complainant
as a witness for further cross-examination and for filing
additional affidavit of the accused/Bir Singh along with the
documents in his defence has been dismissed.
2. Briefly stated the facts of the case are that the respondent
had filed a complaint under Section 138 of the Negotiable
Instruments Act against the present petitioner/accused. The
complainant had adduced his evidence and thereafter the
statement of the accused was recorded and an opportunity
Crl. M.C. No.1425/2011 Page 1 of 5
was given to the accused to adduce his defence. The accused
did not adduce any evidence despite sufficient opportunities
having been given on account of which the learned Trial
Court closed the defence of the accused /petitioner on
26.06.2010 and listed the matter for final arguments on
11.08.2011. The accused/petitioner filed an application for
recalling the complainant for further cross examination and
also for filing his own additional affidavit along with the
documents in order to establish that no offence has been
committed by him. The ground for recalling the complainant
was that the counsel who was representing the
accused/petitioner earlier had not asked certain relevant
questions to the complainant which are very vital for his
defence. So far as the filing of the additional affidavit and
documents are concerned, no plausible explanation has been
given. The learned Magistrate after hearing the arguments
rejected the application on the ground that the non-
examination of the complainant by the earlier counsel cannot
be set up as a ground for recalling of the witness for further
cross examination. It was observed, in case, it is permitted to
be done then practically in every case the accused at any
stage can say that his earlier counsel has not asked the
appropriate questions to the witness and therefore, he may
be permitted to recall the witness. Accordingly, the
application was dismissed.
Crl. M.C. No.1425/2011 Page 2 of 5
3. Further, it was also observed by the learned Magistrate that
the very fact that the application was filed when the case was
listed for final arguments shows that it was actuated only
with a view to delay the disposal of the main case itself.
4. I have heard the learned counsel for the petitioner and have
also gone through the order as well as the other documents
filed along with the petition. The learned counsel for the
petitioner has relied upon the observations passed by the
Apex Court in the case titled Krishna Janardhan Bhat Vs.
Dattatraya G. Hedge (2008) 4 SCC 54 wherein it has been
observed as under:
"Lacuna in the prosecution must be understood
as the inherent weakness or a latent wedge in
the matrix of the prosecution case. The
advantage of it should normally go to the
accused in the trial of the case, but an oversight
in the management of the prosecution cannot be
treated as errors. 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. After all, function of
the criminal court is administration of criminal
justice and not to count errors committed by the
parties or to find out and declare who among the
parties performed better."
5. It is on the basis of these observations, the learned counsel
for the petitioner has contended that the recalling/re-
examination of the complainant as a witness for the purpose
of further cross-examination will not fill up the lacuna in the
defence instead, it is required in the interest of justice.
Crl. M.C. No.1425/2011 Page 3 of 5
6. I have gone through the judgment cited by the learned
counsel for the petitioner in case titled Krishna Janardhan's
case. The facts of the said judgment are totally
distinguishable from the facts of the present case. In the
reported case, the complainant had recalled certain witnesses
for the purpose of cross examination. One of the arguments
which was put before the Apex Court was that the Court
should not have allowed the application of the complainant to
recall the witnesses for the purpose of further examination, as
it tantamounts to filling up the lacuna. It was in this context
that the Apex Court observed that a distinction has to be
drawn between filling up the lacuna and an error which has
taken place during the course of trial. The witness may not
be allowed to be summoned for the purpose of further cross-
examination in order to fill up the lacuna while as in a case of
genuine error, a party can be permitted to recall the witness
for further cross-examination. In the present case, the
petitioner /accused is trying to fill up the lacuna and this
lacuna is stated to be that the earlier counsel who was
conducting the matter on behalf of the petitioner had not
cross examined the witnesses properly and did not put
questions which were essential for the defence of the accused.
If this analogy is accepted then every time a counsel is
changed, the new counsel may like to cross examine the
witness according to his own whims and fancies and in that
Crl. M.C. No.1425/2011 Page 4 of 5
eventuality not only the witness will be subjected to
harassment but it will also result in an unending trial of the
matter. Apart from this, in the instant case, the learned
Magistrate has very correctly noted that the entire purpose of
filing the application was to indulge in dilatory tactics
because the stage at which this application was filed was
highly belated as the defence of the accused had also been
closed long back and the case was fixed for final arguments.
7. For these reasons, I feel that the judgment which is relied
upon by the petitioner /accused is of no help to him. I do
not find any irregularity, illegality or impropriety in the order
passed by the learned Magistrate nor do I find that any order
to the contrary is required to be passed under Section 482
Cr.P.C.
8. For the reasons mentioned above, I feel that there is no merit
in the petition, and accordingly, the same is dismissed.
V.K. SHALI, J.
May 13, 2011
KP
