Delhi High Court
Frontline Ncr Business Solutions ... vs State & Anr. on 11 September, 2014
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2014
+ CRL. M.C. No.1382/2014
FRONTLINE NCR BUSINESS SOLUTIONS PVT. LTD. ..... Petitioner
Through: Mr. Madhukar Pandey with Mr.
Anirudha Mishra and Mr. Akshat
Randeo, Advocates.
versus
STATE & ANR. ..... Respondents
Through: Mr. M.P. Singh, APP for the State.
Mr. G.S. Chaturvedi, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. This is a petition under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as „Cr.P.C.‟) against order dated
18.12.2012 passed by learned Metropolitan Magistrate, Dwarka Courts,
New Delhi whereby application under Sections 311 and 340 of Cr.P.C.
filed by the petitioner was dismissed.
2. Briefly stated the facts giving rise to the present petition are that
the respondent No.2 herein filed a complaint under Sections 138/141/142
of Negotiable Instruments Act, 1881 (for short, „NI Act‟) in respect of
cheque bearing No.317532 dated 29.12.2009 for Rs.10,00,000/- (Rupees
Ten lakhs) drawn on Axis Bank, Rajinder Nagar Branch, New Delhi. On
presentation, the said cheque was dishonoured with the remarks
„insufficient funds‟ vide return memo dated 11.01.2010. Despite
statutory notice dated 08.02.2010, the accused persons failed to make the
payment of the amount of cheque.
3. Learned trial court summoned the petitioner and notice under
Section 251 Cr.P.C. was given. The petitioner tendered affidavit of Mr.
Aditya Malik, Director of the company and cross-examination was
conducted, at length, on behalf of the petitioner on 28.02.2011.
Thereafter, an application under Section 311 Cr.P.C. for recalling Mr.
Aditya Malik (CW-1) for further cross-examination was filed on behalf of
the petitioner. Vide order dated 18.12.2012, the said application was
dismissed by learned trial court. Aggrieved by the said order, the
petitioner preferred a Revision Petition bearing No.11/13, which was
dismissed as withdrawn on 20.01.2014 with liberty to avail appropriate
remedy as per law.
4. Against the order dated 18.12.2012 passed by learned Metropolitan
Magistrate, the petitioner has filed the present petition.
5. Learned counsel for the petitioner submits that the complaint filed
by respondent No.2 is based on an agreement but respondent No.2 did not
file any agreement along with the complaint. In cross-examination of
Aditya Malik (CW-1), the witness produced the agreement, which was
exhibited as CW-1/D1. Later on, the petitioner verified the document
from the Court which was in his possession. Learned counsel for the
petitioner also urges that the agreement exhibited as Exhibit CW-1/D1
was filed in the Court, for the first time during the cross-examination of
Mr. Aditya Malik (CW-1) on 28.02.211. He also submits that when the
petitioner came to know that the said document is incomplete, the
petitioner moved an application under Section 311 Cr.P.C. on
20.04.2011. According to him, the witnesses are suppressing the truth
and the complete copy of the said agreement is essential for decision of
the present case.
6. The provisions of Section 311 of Cr.P.C. are solitary and are
enacted whereunder any Court by exercising its discretionary authority at
any stage of inquiry, trial or other proceedings can summon any person as
a witness or examine any person in attendance though not summoned as a
witness or recall or re-examine any person in attendance though not
summoned as a witness or recall and re-examine a person already
examined. It is the plenary power of the Court with a view to meet the
ends of justice in a given case. The power is, however, to be exercised
with caution and invoked as exigencies of justice require and to be
exercised judiciously with circumspection and consistently with the
provisions of Cr.P.C.
7. In „Mohanlal Shamji Soni vs. Union of India and Anr.‟, 1991
Crl. L.J. 1521, it was observed as under: -
"10. It is cardinal rule in the law of evidence that the best
available evidence should be brought before the Court to
prove a fact or the points in issue. But it is left either for
the prosecution or for the defence to establish its respective
case by adducing the best available evidence and the Court
is not empowered under the provisions of the Code to
compel either the prosecution or the defence to examine
any particular witness or witnesses on their sides.
Nonetheless if either of the parties withholds any evidence
which could be produced and which, if produced, be
unfavourable to the party withholding such evidence, the
Court can draw a presumption under illustration (g) to
Section 114 of the Evidence Act. In such a situation a
question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at the
end of the combat who has won and who has lost or is
there not any legal duty of his own, independent of the
parties, to take an active role in the proceedings in finding
the truth and administering justice? It is a well accepted
and settled principle that a Court must discharge its
statutory functions whether discretionary or obligatory -
according to law in dispensing justice because it is the duty
of a Court not only to do justice but also to ensure that
justice is being done. In order to enable the Court to find
out the truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of the
new Code) are enacted whereunder any Court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any person
as a witness or examine any person in attendance though
not summoned as a witness or recall or re-examine any
person in attendance though not summoned as a witness or
recall and re-examine any person already examined who
are expected to be able to throw light upon the matter in
dispute; because if judgments happen to be rendered on
inchoate, inconclusive and speculative presentation of
facts, the ends of justice would be defeated."
8. In the instant case, Mr. Aditya Malik, Director/ authorised
representative of the complainant company was examined on 28.02.2011
and during cross-examination on behalf of the petitioner, he produced an
agreement exhibited as exhibit CW-1/D1.
9. According to the petitioner, the witness did not produce second
page of the said agreement, which is essential for just decision of the
case. The application for recalling the witness was filed on 20.04.2011.
The interest of justice requires that one opportunity should be granted to
the petitioner to recall the witness for further cross-examination for
putting certain questions on the agreement.
10. Considering the facts of the instant case, the trial court is directed
to recall Mr. Aditya Malik (CW-1) for further cross-examination.
However, it is made clear that only one effective opportunity will be
afforded to the petitioner for further cross-examination and the cross-
examination will be limited to agreement exhibited as Exhibit CW-1/D1
only.
11. With the aforesaid observations, the petition stands disposed of.
Crl. M.A. No.4733/2014
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
SEPTEMBER 11, 2014
hs
