Delhi High Court
Acura Glass Tiles Enterprises ... vs S.S.Ray on 20 January, 2015
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 20.01.2015
% CRL.A. 273/2010
ACURA GLASS TILES ENTERPRISES
THROUGH PROPRIETOR SAVITA GUPTA
..... Appellant
Through: Ms. Chandrani Prasad and Mr.
Virender Tarun, Advocates
versus
S.S. RAY
..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present appeal under Section 378 Cr PC is directed against the
judgment dated 02.06.2009 passed by Sh. Manoj Kumar, ASJ, New Delhi in
CC No.399/2009 titled as Acura Glass Tiles Enterprises v. S.S. Ray,
whereby the appellants complaint under Section 138 of the Negotiable
Instruments Act, 1881 (the Act) was dismissed, and the respondent/accused
was acquitted.
2. The aforesaid complaint had been preferred by the appellant/
Crl A No.273/2010 Page 1 of 29
complainant in respect of four cheques, details whereof are as follows:
Cheque No. Drawn on Amount Exhibit
& Date
609690 The National Co-op 40,000 CW-1/C
26.05.2006 Bank Ltd., Nerul
Railway Station Branch,
Mumbai
091605 ICICI Bank 27,500 CW-1/B
05.06.2006 Vashi Branch, Mumbai
091628 ICICI Bank 80,000 CW-1/D
10.06.2006 Vashi Branch, Mumbai
091629 ICICI Bank 50,000 CW-1/E
02.10.2006 Vashi Branch, Mumbai
3. On the aspects not in dispute, and with regard to which no issue was
raised or argued by either side, I do not consider it necessary to record the
facts and the findings. The case of the complainant/appellant was that there
were business transactions between the parties. This position is not disputed
by the respondent. The parties entered into a settlement Exh.CW-1/A on
04.05.2006, which was executed on the letterhead of Sonifix Enterprises,
which admittedly is a proprietary concern of the respondent. The same
reads as follows:
"To
M/s Accura Glass Tiles Enterprises
Delhi.
This is to assure the discussion following are payment
committed by me as under:
Crl A No.273/2010 Page 2 of 29
M/s Suyas Construction Rs.2,42,000/-
M/s Prakruti Enterprises Rs.35,000/-
371 Rs.55,000/-
Adhersi Rs.40,000/-
--------------
Rs.3,72,000/-
========
Rs.3,50,000/- (Three lakh fifty thousand only) is lumpsum
amount agreed & outstanding in front of Mr. Kumar and will
cleared by latest by 4th June, 2006. The said amount is
outstanding till date with me".
4. The appellant claims that the aforesaid four cheques had been issued
by the respondent in partial discharge of the admitted liability of
Rs.3,50,000/-. On presentation, the said cheques had been dishonoured.
Consequently, after issuance of legal notice for demand, the complaint had
been preferred.
5. The notice was framed against the respondent, who pleaded not
guilty. Thereafter the complainant led her evidence as CW-1. She was also
cross examined by the respondent/accused. The statement of the respondent
under Section 313 was recorded, whereafter he appeared as his own witness
as DW-1. He was cross examined by the complainant.
6. On the application of the accused, the records of the appellant
company were directed to be produced. They were so produced on record as
Exh. X, Y, Z and ZA - which were the statement of accounts for the period
2006-07 and 2007-08. The production of the said document was sought by
the accused to substantiate its defence that the accused did not owe the
amount of either Rs.3,72,000/- or Rs.3,50,000/- as alleged by the
complainant on the basis of Exh.CW-1/A. While dismissing the complaint,
the Trial Court held as follows:
"24. From a reading of the complaint and the evidence led on
behalf of the complainant it can be discerned that the whole
edifice of the claim of the complainant is founded on the supply
of the goods worth Rs.3,72,000/- by it and subsequent
settlement on 04.05.2006.
25. During the evidence on behalf of the complainant, CW1
Smt. Savita Gupta tendered document Ex CW1/A which is
claimed to be a document of settlement effected between
complainant Acura Glass Enterprises and the accused. During
his cross examination the accused admitted his signatures on
Ex CW1/A but during arguments it is contended on his behalf
that the document Ex CW1/A was not executed by him.
26. A perusal of Ex CW1/A reveals that the amount of
Rs.3,72,000/- was figured out between the parties (the
complainant and the accused) on account of payment of
Rs.2,42,000/- due from M/s Suyash Construction, payment of
Rs.35,000/- due from M/s Prakriti Enterprises and payment of
Rs.55,000/- and Rs.44,000/- on some other accounts.
27. There is no evidence on record to suggest that the
document Ex CW1/A, purporting to be a settlement, pertain to
the liability of the accused in respect of the goods supplied by
the complainant to him as proprietor of M/s Sonifix Enterprises
as asserted on behalf of the complainant in its complaint, notice
Ex. CW1/K and affidavit Ex. CW1/Q. In the face of the contents
of the document Ex CW1/A, the contents of paragraph no.3 of
the complaint, paragraph no.2 of notice Ex CW1/K and
paragraph no.3 of affidavit of Ex CW1/Q appear to be false;
and it has been proved that the settlement was not effected (as
asserted on behalf of the complainant in its complaint, notice
Ex CW1/Koo and affidavit Ex CW1/Q) between the complainant
and the accused regarding supply of tiles and other material to
him on the basis of which bill to the tune of Rs.3,72,000/- was
allegedly raised by the complainant.
28. Further according to the complainant as on 04.05.2006,
the date of the settlement between the parties, the accused owed
a total liability of Rs.372,000/- towards the complainant, which
was settled at Rs.350,000/- but a perusal of the document Ex. X,
which was produced by the agent of the complainant during the
trial of the case on the directions of the court, reveals that as
per the account maintained by the complainant in the month of
April and May 2006 the accused did not owe any liability of
Rs.372,000/- or Rs.350,000/- to the complainant instead his
firm Sonifix Enterprises owed liability of Rs.1,86,468.75 only
and thus the allegation of the complainant that the accused
owed liability of Rs.372,000/- which was settled at Rs.350,000/-
is proved as false.
29. It is stated in paragraph no.4 and corresponding
paragraph of the demand notice Ex CW1/K and affidavit Ex
CW1/Q that to discharge his liability the accused issued four
cheques namely Ex CW1/B, Ex CW1/C, Ex CW1/D and Ex
CW1/E in his favour. A perusal of the said cheques reveals that
the same are dated 05.06.2006, 26.05.2006, 10.6.2006 and
02.10.2006 respectively. The assertion of the complainant is
that the said cheques were issued by the accused to partly
discharge the liability out of Rs.350,000/-. However, a perusal
of document Ex CW1/B/D, the contents of which have been
admitted by CW1 during her cross examination, reveals that
before the presentation of the said cheques for encashment in
the month of November, 2006 and after the date of the last
mentioned cheque i.e. 02.10.2006, the complainant got served a
notice dated 22.10.2006 Ex CW1//B/D on the accused whereby
having mentioned about the settlement dated 04.05.2006 a
demand of Rs.350,000/- was made on behalf of the
complainant. This is something very unusual because if the
accused issued and the complainant received the cheques Ex
CW1/B, Ex CW1/C, Ex CW1/D and Ex CW1/E in discharge of
part liability of Rs.350,000/- and neither of the said cheque was
presented by the complainant for encashment, there was no
occasion for the complainant to demand the whole amount of
Rs.350,000/-. Further in Ex CW1/B/D the complainant has not
mentioned about any of the said cheques, although, as per the
complainant's version, all the four cheques had already been
received by it from the accused. The omission to mention about
the cheques in notice Ex CW1/B/D gives weight to the defence
of the accused that before 22.10.2006 no cheque was drawn by
him in favour of the complainant to discharge any liability and
the cheques given as security were used by the complainant
after 22.10.2006. This contention of the accused is further
supported by the testimony of CW1 who during her cross
examination, when confronted with Ex CW1/B/D, deposed in
affirmative that the notice Ex CW1/B/D was sent by her to the
accused because he (the accused) had not made the payment in
cash or by cheque prior to the notice (Ex CW1/B/D). If no
cheque was given by the accused to the complainant prior to
the notice Ex CW1/B/D then it can be treated as proved, beyond
doubt, that the complainant has made false statement to the
effect that the cheques were drawn by the accused to discharge
his part liability arising out of Ex CW1/A.
30. As per section 139 of the Act No.26 of 1881 the onus is
on the accused to prove that the cheques were not given to
discharge any liability. The onus of proof on the accused is not
as heavy as on the complainant to prove its case because in a
criminal trial an accused can prove any fact in his defence on
the scale of preponderance of probabilities.
31. In the light of the evidence led by the parties this court is
satisfied that the accused has succeeded in proving his defence.
From the document Ex CW1/A itself it has been proved that the
accused did not owe liability of Rs.350,000/- on account of
goods supplied by the complainant to the accused as proprietor
of M/s Sonifix Enterprises. From the document Ex. X and Ex.
Y, which are statements of account for the year 2006-07 and
2007-08 and produced by the agent of the complainant, it has
also proved that the accused did not owe liability of
Rs.372,000/- or 350,000/- in the month of April and May 2006.
From the testimony of CW1 and document Ex CW1/B/D it has
also been proved that the cheques Ex CW1/B, Ex CW1/C, Ex
CW1/D and Ex CW1/E were not issued by the accused prior to
notice dated 22.10.2006 Ex. CW1/B/D. The cumulative effect of
these proved facts is that the accused has succeeded in proving
that the cheques were not issued by him to discharge any
enforceable debt or liability. The cheques were given for other
purpose and in all probability, as claimed by the accused, as
security for payment of money".
7. The submission of learned counsel for the appellant is that in the
present case, the legal debt had been admitted by the respondent/accused in
Exh.CW-1/A. The respondent/accused had admitted to have executed the
settlement Exh.CW-1/A. The submission is that the accused neither
disowned the said settlement, nor claimed that the same had been got
executed by exercise of coercion, duress, inducement or the like. The
respondent had deposed in relation to the aforesaid settlement as follows:
"I have seen Ex. CW1/A on record. I identify my signatures at
point A on Exbt. CW1/A".
8. Counsel for the appellant submits that in the light of the said
admission of debt and liability to the tune of Rs.3,72,000/- and the lumpsum
settlement of Rs.3,50,000/-, it was not open to the accused to fall back on
some statement of accounts, namely, Exh. X, Y, Z and ZA to claim that the
debts/liability to the tune of Rs.3,72,000/- was not outstanding as on
04.05.2006, when the said debt/liability was negotiated and a lumpsum
settlement was arrived at between the parties, whereunder the accused had
agreed to pay Rs.3,50,000/- by 04.06.2006.
9. Counsel for the appellant further submits that the accused had
admitted the issuance of the aforesaid four cheques, namely, Exh.CW-1/B,
C, D & E by him during his cross examination conducted on 01.05.2009. In
this regard, the cross examination of the accused DW-1 reads as follows:
"I have seen four cheques on record Exbt. CW1/B, Exbt.
CW1/C, Exbt. CW1/D & Exbt. CW1/E. It is right to suggest
that cheque Exbt. CW1/B, Exbt. CW1/D & Exbt. CW1/E are
issued on ICICI Bank and cheque Exbt. CW1/C issued on the
National Cooperative Bank Ltd All the aforesaid four cheques
are issued by me".
10. Learned counsel submits that the accused thereafter sought to resile
from his admission under the garb of re-examination, which was permitted
by the trial court despite an objection being raised by the complainant.
Learned counsel submits that the objection of the complainant to re-
examination was overruled without recording any justification or reasons. It
is further submitted that even though the re-examination was sought, and
permitted, on the two points "namely, the dates of cheques Exh. CW-1/B,
Exh. CW-1/C, Exh. CW-1/D, Exh. CW-1/E and the nature deposed to have
been recorded by the witness", the said re-examination was permitted even
to resile from the admission earlier made by the DW-1. In his re-
examination, DW-1, inter alia, stated:
"I have not issued cheques Exbt. CW1/B, Exbt. CW1/C, Exbt.
CW1/D and Exbt. CW1/E on that dates which dates are
mentioned in the above cheques".
11. Learned counsel submits that upon further cross examination, it was
suggested to DW-1 that he had deposed falsely. Lastly, she submits that
since the debt had been admitted by the accused and, admittedly, the
cheques had been issued by him, the dismissal of the complaint was
unwarranted as the presumption under Section 118 of the Negotiable
Instruments Act had not been dislodged in the facts of this case.
12. On the other hand, learned counsel for the respondent/accused has
sought to support the impugned judgment. He submits that in the cross
examination of the complainant, she was not able to state as to where from
Exh. CW-1/A - the settlement had come about. He further submits that
upon a perusal of Exh. X, Y, Z & ZA, it is clear that the amount of
Rs.3,72,000/- was not outstanding in the account of the firm M/s Sonifix
Enterprises. He further submits that in her cross examination, CW-1 had
admitted that a legal notice dated 22.10.2006 Exh. CW-1/B/D had been got
issued by the complainant through her advocate Sh. C.P. Vig.
13. Learned counsel submits that had the cheques in question been issued
by the accused on the dates mentioned therein, there was no question of the
complainant claiming in the said legal notice (Ex.CW1/B/D) that the
accused had failed to make payment of the settled amount of Rs.3,50,000/-
in terms of the settlement dated 04.05.2006. In this notice, the complainant
had made a demand for Rs.3,50,000/- along with 24% interest per annum.
Learned counsel submits that this demand notice (Ex.CW1/B/D) was
concealed in the complaint. The same had been put to the complainant in
her cross examination by the accused, which was admitted by her. He
further submits that the complainant (CW1) had admitted during her cross-
examination that the notice (Ex.CW1/B/D) dated 22.10.2006 was sent to the
accused because he had "not made the payment in cash or by cheque prior
to this notice."
14. Learned counsel for the respondent further submits that no recovery
suit has been filed till date by the complainant for recovery of the amount of
Rs.3,50,000/- or even the balance amount, since the cheques in question
aggregate to Rs.1,97,500/- only. Learned counsel submits that the aforesaid
four cheques had been obtained by the complainant towards security and had
been misused subsequently by filling up the same to falsely claim that they
had been issued in partial discharge of the debt allegedly admitted in Exh.
CW-1/A. He submits that since the cheques in question had not been issued
to discharge the liability, the complaint was liable to fail.
15. Having heard learned counsel and perused the impugned judgment as
well as the trial court record, I am of the view that the learned trial court was
seriously misdirected in its approach. There are serious infirmities in the
impugned judgment which have resulted in acquittal of the
respondent/accused and consequential failure of justice. The factum of
issuance of the four cheques in question by the respondent/accused; the
factum of the said cheques being dishonoured upon presentation; the factum
of the complainant sending the statutory notice of demand which was
received by the accused; the factum of the accused not making any payment
in terms of the demand, and; the factum of the complaint being preferred
within the statutory period of limitation of non-payment of the demanded
amount , are not in dispute and, therefore, need not be elaborated upon. The
laconic approach of the trial court is, firstly, evident from para 25 of the
impugned judgment which has been extracted hereinabove. Even though the
accused admitted his signatures on Ex.CW1/A-the settlement arrived at
between the parties on 04.05.2006, the trial court noticed that the accused
had claimed that Ex.CW1/A had not been executed during his arguments-a
fact which is of no relevance. The trial court proceeds on the basis that no
evidence was led by the complainant to suggest that settlement (Ex.CW1/A)
pertained to the liability of the accused in respect of goods supplied by the
complainant to the accused as proprietor of M/s Sonifix Enterprises.
Ex.CW1/A is clear in its terms. It is of no relevance as to whether, or not,
the entities which are acknowledged to be indebted to the complainant,
namely, M/s Suyas Construction, M/s Prakruti Enterprises, 371, and Adhersi
were so indebted or not, and if so, to what extent. It is also of no relevance
whether the said entities had any connection with the accused. All that is
relevant is that the accused voluntarily-without any coercion, undue
influence, inducement or the like (none of which is set up as a defence by
the accused) acknowledged the aggregate liability of the aforesaid four
concerns of Rs. 3,72,000/-, and the accused undertook to settle the said
outstanding dues for a lump sum amount of Rs. 3,50,000/- and clear the
same latest by 04.06.2006. He, inter alia, stated, "the said amount is
outstanding till date with me". It is well settled, that the liability of A owed
to B may be paid, or undertaken to be paid by C. If C, in discharge of the
said liability makes payment either in cash or by cheque to B, the same
constitutes a valid discharge of the debt of A owed to B. Thus, B cannot
enforce the debt against A after receiving the amount, as settled, from C.
Similarly, after paying the debt of A to B, C cannot claim a refund of the
amount paid to B on the ground that he personally owed no liability to B.
Similarly, if C tenders a cheque to B in settlement of the dues of A, owed to
B, in favour of B, the same would be for payment and the same would be
'for the discharge, in whole or in part, of any debt or other liability' as
contemplated under Section 138 of the Act. Thus, there was no need or
occasion, for the complainant to establish that Ex.CW1/A was a settlement
'pertaining to the liability of the accused in respect of goods supplied by the
complainant to him as proprietor of M/s Sonifix Enterprises', as observed by
the trial court. In fact, the complainant could not have established that the
entire liability of M/s Sonifix Enterprises was Rs. 3,72,000/-. This is for the
reason that the said liability was of four different concerns mentioned in
Ex.CW1/A. Reference made to the complaint, notice (Ex.CW1/K) and
affidavit (Ex.CW1/Q) to say that they do not accurately reflect the position
as found in Ex.CW1/A, to my mind, is neither here nor there. The crux of
the matter is that the accused entered into a lump-sum settlement with the
complainant, acknowledging the liabilities of the aforesaid four entities of
Rs. 3,72,000/-, and undertook to pay a sum of Rs. 3,50,000/- in settlement of
the said liabilities latest by 04.06.2006. The discrepancy pointed out by the
trial court in para 27 of the impugned order is immaterial and irrelevant in
the face of Ex.CW1/A-the execution whereof was admitted by the accused.
Obviously, the said settlement (Ex.CW1/A) did not pertain to supply of tiles
or other material to the accused in the name of his sole proprietary firm M/s
Sonifix Enterprises. This is obvious from the admitted settlement
(Ex.CW1/A). For the same reason, it is obvious that there could not have
been a bill for Rs. 3,72,000/- raised by the complainant against the accused
or his firm M/s Sonifix Enterprises. At this stage, I may also note that the
trial court seems to have completely over-looked the position that a sole
proprietary concern has no legal standing of its own. It is merely a trade
name adopted by the proprietor. The legal entity is the sole proprietor
himself and not his sole proprietary firm.
16. Exs. X, Y, Z and ZA, which are the statements of accounts of the
complainant for the period 2006-07 and 2007-08, in the aforesaid
background, would obviously not show the outstanding liability of M/s
Sonifix Enterprises as Rs. 3,72,000/-. The said documents were wholly
irrelevant. Since the parties had mutually settled their accounts and arrived
at the total outstandings owed by the four firms to the complainant at
Rs. 3,72,000/- - which was settled at Rs. 3,50,000/- lump-sum, in my view,
it was not open to the trial court to go behind Ex.CW1/A and undertake an
inquiry whether the liability acknowledged by the accused in Ex.CW1/A
was accurate or not. This is so because the accused did not disown
Ex.CW1/A. Rather, he admitted the said document in his cross-
examination. Thus, the findings returned by the learned trial court in paras
27 and 28 of the impugned judgment are wholly unsustainable, as the trial
court has completely failed to appreciate the purport and effect of
Ex.CW1/A.
17. The trial court has given much weightage to the fact that though the
four cheques in question are dated 26.05.2006, 05.06.2006, 10.06.2006 and
02.10.2006, while issuing the notice Ex.CW1/B/D, dated 22.10.2006, there
was no mention of the said cheques by the complainant. The trial court also
observes that the complainant did not produce the said cheques for
encashment before issuance of the notice Ex.CW1/B/D dated 22.10.2006,
and despite holding the said cheques, demanded the whole amount of
Rs. 3,50,000/- as settled with the accused. The trial court observes that the
omission of the complainant to mention about the four cheques in question,
in the notice Ex.CW1/D, gives credence to the defence of the accused that
before 22.10.2006 (date of Ex.CW1/B/D), no cheque was drawn by the
accused in favour of the complainant to discharge any liability and that the
cheques given as security were used by the complainant after 22.10.2006.
The trial court also relies on the testimony of CW1 in her cross-examination
by observing that CW1(during her cross-examination when confronted with
Ex.CW1/B/D) deposed in the affirmative that the notice (Ex.CW1/B/D) was
sent by her to the accused because he (the accused) had not made the
payment in cash or by cheque prior to the notice (Ex.CW1/B/D).
18. A perusal of the record shows that during the cross-examination of
CW1, the following question and the answer thereto was recorded in respect
of the notice (Ex.CW1/B/D):
"Q: This notice was sent by you to the accused because he
had not made the payment in cash or by cheque prior to
his notice. Is it correct or not.
A: It is correct."
19. The aforesaid question put to CW1 pertains to the "payment" not
being made either in cash or by cheque. Pertinently, the said question does
not pertain to the aspect of "issuance" of the cheques, or their presentation
for payment. Pertinently, the complainant during further cross-examination
had denied the suggestion that the cheques in question were in her
possession for the last 4-5 years. Mere non-disclosure of the issuance of the
said cheques (which, admittedly had not been sent for encashment till the
issuance of the notice Ex.CW1/B/D) cannot lead to the inference that the
said cheques had not even been issued till the date of issuance of
Ex.CW1/B/D i.e. 22.10.2006. Since the complainant had not received any
part of the amount of Rs. 3,50,000/- till issuance of Ex.CW1/B/D, the
complainant was justified in demanding the whole amount of Rs. 3,50,000/-
in Ex.CW1/D. As to under what circumstances, the four cheques aforesaid
were not banked by the complainant before issuance of the notice
(Ex.CW1/B/D) dated 22.10.2006 has neither been disclosed by the
complainant, nor by the accused. While the accused claims that the said
cheques had been given towards security, nothing has been brought on
record to substantiate the said defences. No forwarding letter, or any other
recording contemporaneously made when the said cheques were allegedly
given as security to the complainant, has been produced by the accused. To
my mind, it is not enough for the accused to merely state that the cheques in
question were given as security, particularly when he has admitted his
liability and quantified the same and also undertaken to make payment
thereof vide Ex.CW1/A. In V.S. Yadav Vs. Reena, 172 (2010) DLT 561,
this Court observed:
"5. ... ... ... ... ... In the present case, the accused in his
statement stated that he had given cheques as security. If the
accused wanted to prove this, he was supposed to appear in the
witness box and testify and get himself subjected to cross
examination. His explanation that he had the cheques as
security for taking loan from the complainant but no loan was
given should not have been considered by the Trial Court as his
evidence and this was liable to be rejected since the accused
did not appear in the witness box to dispel the presumption that
the cheques were issued as security. Mere suggestion to the
witness that cheques were issued as security or mere
explanation given in the statement of accused under Section
281 Cr. P.C., that the cheques were issued as security, does not
amount to proof. ... ... ... ..."
20. Reliance placed by learned counsel for the accused on the re-
examination of the accused to say that the accused had denied having issued
the cheques in question on the dates which are mentioned therein is of no
avail. This is for the reason that, firstly, the learned trial court does not
record reasons while permitting re-examination of DW1 as to why re-
examination should be permitted in the given circumstances. No doubt, the
power of examination, including the power to re-examine a witness under
Section 311 Cr.P.C. has been construed widely by the courts. However, that
does not mean, that the said power can be exercised without even recording
some reasons. The Supreme Court in Rajaram Prasad Yadav Vs. State of
Bihar and Anr. (2013) 4 SCC 461, as observed as follows:
14. A conspicuous reading of Section 311 Code of Criminal
Procedure would show that widest of the powers have been
invested with the Courts when it comes to the question of
summoning a witness or to recall or re-examine any witness
already examined. A reading of the provision shows that the
expression "any" has been used as a pre-fix to "court",
"inquiry", "trial", "other proceeding", "person as a witness",
"person in attendance though not summoned as a witness", and
"person already examined". By using the said
expression "any" as a pre-fix to the various expressions
mentioned above, it is ultimately stated that all that was
required to be satisfied by the Court was only in relation to
such evidence that appears to the Court to be essential for the
just decision of the case. Section 138of the Evidence Act,
prescribed the order of examination of a witness in the Court.
Order of re-examination is also prescribed calling for such a
witness so desired for such re-examination. Therefore, a
reading of Section 311 Code of Criminal Procedure and
Section 138 Evidence Act, insofar as it comes to the question of
a criminal trial, the order of re-examination at the desire of any
person under Section 138, will have to necessarily be in
consonance with the prescription contained in
Section 311 Code of Criminal Procedure It is, therefore,
imperative that the invocation of Section 311 Code of Criminal
Procedure and its application in a particular case can be
ordered by the Court, only by bearing in mind the object and
purport of the said provision, namely, for achieving a just
decision of the case as noted by us earlier. The power vested
under the said provision is made available to any Court at any
stage in any inquiry or trial or other proceeding initiated under
the Code for the purpose of summoning any person as a witness
or for examining any person in attendance, even though not
summoned as witness or to recall or re-examine any person
already examined. Insofar as recalling and re-examination of
any person already examined, the Court must necessarily
consider and ensure that such recall and re-examination of any
person, appears in the view of the Court to be essential for the
just decision of the case. Therefore, the paramount requirement
is just decision and for that purpose the essentiality of a person
to be recalled and re-examined has to be ascertained. To put it
differently, while such a widest power is invested with the
Court, it is needless to state that exercise of such power should
be made judicially and also with extreme care and caution.
15. In this context, we also wish to make a reference to certain
decisions rendered by this Court on the interpretation of
Section 311 Code of Criminal Procedure where, this Court
highlighted as to the basic principles which are to be borne in
mind, while dealing with an application under
Section 311 Code of Criminal Procedure In the decision
reported in Jamatraj Kewalji Govani v. State of
Maharashtra MANU/SC/0063/1967 : AIR 1968 SC 178, this
Court held as under in paragraph 14:
14. It would appear that in our criminal
jurisdiction, statutory law confers a power in
absolute terms to be exercised at any stage of the
trial to summon a witness or examine one present
in court or to recall a witness already
examined, and makes this the duty and obligation
of the Court provided the just decision of the case
demands it. In other words, where the court
exercises the power under the second part, the
inquiry cannot be whether the accused has brought
anything suddenly or unexpectedly but whether the
court is right in thinking that the new evidence is
needed by it for a just decision of the case. If the
court has acted without the requirements of a just
decision, the action is open to criticism but if the
court's action is supportable as being in aid of a
just decision the action cannot be regarded as
exceeding the jurisdiction.
(Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni v. Union
of India and Anr. MANU/SC/0318/1991 : 1991 Supp. (1) SCC
271, this Court again highlighted the importance of the power
to be exercised under Section 311 Code of Criminal Procedure
as under in paragraph 10:
10... 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 where
under 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.
17. In the decision in Raj Deo Sharma (II) v. State of
Bihar MANU/SC/0607/1999 : 1999 (7) SCC 604, the
proposition has been reiterated as under in paragraph 9:
9. We may observe that the power of the court as
envisaged in Section 311 of the Code of Criminal
Procedure has not been curtailed by this Court.
Neither in the decision of the five-Judge Bench in
A.R. Antulay case nor in Kartar Singh case such
power has been restricted for achieving speedy
trial. In other words, even if the prosecution
evidence is closed in compliance with the
directions contained in the main judgment it is still
open to the prosecution to invoke the powers of the
court under Section 311 of the Code.We make it
clear that if evidence of any witness appears to
the court to be essential to the just decision of the
case it is the duty of the court to summon and
examine or recall and re-examine any such person.
(Emphasis added)
18. In U.T. Of Dadra and Nagar Haveli and Anr. v. Fatehsinh
Mohansinh Chauhan MANU/SC/3471/2006 : 2006 (7) SCC
529, the decision has been further elucidated as under in
paragraph 15:
15. A conspectus of authorities referred to above
would show that the principle is well settled that
the exercise of power under Section 311 Code of
Criminal Procedure should be resorted to only
with the object of finding out the truth or
obtaining proper proof of such facts which lead
to a just and correct decision of the case, this
being the primary duty of a criminal court. Calling
a witness or re-examining a witness already
examined for the purpose of finding out the truth
in order to enable the court to arrive at a just
decision of the case cannot be dubbed as "filling
in a lacuna in the 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.
(Emphasis added)
19. In Iddar and Ors. v. Aabida and
Anr. MANU/SC/7857/2007 : AIR 2007 SC 3029, the object
underlying under Section 311 Code of Criminal Procedure, has
been stated as under in paragraph 11:
11. The object underlying Section 311 of the Code
is that there may not be failure of justice on
account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity
in the statements of the witnesses examined from
either side. The determinative factor is whether it
is essential to the just decision of the case. The
section is not limited only for the benefit of the
accused, and it will not be an improper exercise of
the powers of the court to summon a witness under
the section merely because the evidence supports
the case for the prosecution and not that of the
accused. The section is a general section which
applies to all proceedings, enquiries and trials
under the Code and empowers Magistrate to issue
summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is 'at any stage
of inquiry or trial or other proceeding under this
Code'. It is, however, to be borne in mind that
whereas the section confers a very wide power on
the court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the
wider the power the greater is the necessity for
application of judicial mind.
(Emphasis added)
20. In P. Sanjeeva Rao v. State of A.P. MANU/SC/0504/2012 :
AIR 2012 SC 2242, the scope of Section 311 Code of Criminal
Procedure has been highlighted by making reference to an
earlier decision of this Court and also with particular reference
to the case, which was dealt with in that decision in paragraphs
13 and 16, which are as under:
13. Grant of fairest opportunity to the accused to
prove his innocence was the object of every fair
trial, observed this Court in Hoffman Andreas v.
Inspector of Customs,
Amritsar MANU/SC/1505/1999 : (2000) 10 SCC
430. The following passage is in this regard
apposite:
In such circumstances, if the new counsel thought
to have the material witnesses further
examined, the Court could adopt latitude and a
liberal view in the interest of justice, particularly
when the court has unbridled powers in the
matter as enshrined in Section 311 of the Code.
After all the trial is basically for the prisoners
and courts should afford the opportunity to them
in the fairest manner possible.
16. We are conscious of the fact that recall of the
witnesses is being directed nearly four years after
they were examined-in-chief about an incident that
is nearly seven years old. Delay takes a heavy toll
on the human memory apart from breeding
cynicism about the efficacy of the judicial system
to decide cases within a reasonably foreseeable
time period. To that extent the apprehension
expressed by Mr. Rawal, that the prosecution may
suffer prejudice on account of a belated recall,
may not be wholly without any basis. Having said
that, we are of the opinion that on a parity of
reasoning and looking to the consequences of
denial of opportunity to cross-examine the
witnesses, we would prefer to err in favour of the
Appellant getting an opportunity rather than
protecting the prosecution against a possible
prejudice at his cost. Fairness of the trial is a
virtue that is sacrosanct in our judicial system
and no price is too heavy to protect that virtue. A
possible prejudice to prosecution is not even a
price, leave alone one that would justify denial of
a fair opportunity to the accused to defend
himself.
(Emphasis added)
21. In a recent decision of this Court in Sheikh
Jumman v. State of Maharashtra MANU/SC/0911/2012 :
(2012) 9 SCALE 80, the above referred to decisions were
followed.
22. Again in an unreported decision rendered by this Court
dated 08.05.2013 in Natasha Singh v. CBI (State) Criminal
Appeal No. 709 of 2013, where one of us was a party, various
other decisions of this Court were referred to and the position
has been stated as under in paragraphs 14 and 15:
14. The scope and object of the provision is to enable
the Court to determine the truth and to render a just
decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a
just decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may
lead to undesirable results. An application under
Section 311 Code of Criminal Procedure must not be
allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the disadvantage
of the accused, or to cause serious prejudice to the
defence of the accused, or to give an unfair advantage
to the opposite party. Further the additional evidence
must not be received as a disguise for retrial, or to
change the nature of the case against either of the
parties. Such a power must be exercised, provided
that the evidence that is likely to be tendered by a
witness, is germane to the issue involved. An
opportunity of rebuttal, however, must be given to the
other party.
The power conferred under Section 311 Code of
Criminal Procedure 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 great caution and circumspection.
The very use of words such as 'any Court', 'at any
stage', or 'or any enquiry', trial or other proceedings',
'any person' and 'any such person' clearly spells out
that the provisions of this section have been expressed
in the widest possible terms, and do not limit the
discretion of the Court in any way. There is thus no
escape if the fresh evidence to be obtained is essential
to the just decision of the case. The determinative
factor should, therefore, be whether the
summoning/recalling of the said witness is in fact,
essential to the just decision of the case.
15. Fair trial is the main object of criminal
procedure, and it is the duty of the court to ensure
that such fairness is not hampered or threatened in
any manner. Fair trial entails the interests of the
accused, the victim and of the society, and therefore,
fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same
must be ensured as this is a constitutional, as well as
a human right. Thus, under no circumstances can a
person's right to fair trial be jeopardized. Adducing
evidence in support of the defence is a valuable right.
Denial of such right would amount to the denial of a
fair trial. Thus, it is essential that the rules of
procedure that have been designed to ensure justice
are scrupulously followed, and the court must be
zealous in ensuring that there is no breach of the
same. (Vide Talab Haji Hussain v. Madhukar
Purshottam Mondkar and
Anr. MANU/SC/0028/1958 : AIR 1958 SC 376;
Zahira Habibulla H. Sheikh and Anr. v. State of
Gujarat and Ors. MANU/SC/0489/2004 : AIR 2004
SC 3114; Zahira Habibullah Sheikh and Anr. v. State
of Gujarat and Ors. MANU/SC/1344/2006 : AIR 2006
SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.) MANU/SC/0001/2007 : (2007) 2 SCC 258;
Vijay Kumar v. State of U.P. and
Anr. MANU/SC/0891/2011 : (2011) 8 SCC 136; and
Sudevanand v. State through
C.B.I. MANU/SC/0041/2012 : (2012) 3 SCC 387.).
23. From a conspectus consideration of the above decisions,
while dealing with an application under Section 311 Code of
Criminal Procedure 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 Code of Criminal Procedure
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 Code
of Criminal Procedure 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.
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 Code of Criminal
Procedure 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 safe guard, 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 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 Code of Criminal
Procedure 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.
21. Thus, the discretion vested in a Court to permit re-examination of a
witness under Section 311 Cr.P.C. has to be exercised on the broad principle
that the same is considered necessary to meet the ends of justice and if not so
permitted, may lead to injustice. The said wide discretionary power has to
be exercised judiciously and not arbitrarily. The said power should be
exercised by the court after satisfying itself that it was essential to examine a
witness or to recall him for further examination in order to arrive at a just
decision of the case. The purpose of exercise of the power to permit re-
examination of a witness is to prevent failure of justice. At the same time,
the additional evidence must not be received as a disguise, or to change the
nature of the case against any of the parties. The said power 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.
22. In the present case, a perusal of the evidence of DW1 shows that
before permitting re-examination of DW1, the trial court, inter alia, recorded
as follows:
"After cross-examination of the witness it is submitted by the
counsel for the accused that he wants to re-examine the witness
on two points, namely, the date of cheques Ex.CW1/B, Ex.
CW1/C, Ex.CW1/D and Ex.CW1/E and the nature deposed to
have been recurred by the witness.
Counsel for the complainant has objection on re-
examination of witness. It is submitted that in view of Section
315 Cr.P.C. and Section 137 of the Indian Evidence Act, 1872,
the (sic accused) cannot get himself re-examined through his
counsel. It is also submitted that the accused cannot be
allowed to be examined on the points which he ought to have
deposed in his examination in chief.
Having heard both the parties the objections raised by
counsel of the complainant are over-ruled and the witness is
permitted to be re-examined."
The aforesaid does not disclose any reasons for permitting re-
examination of DW1. DW1 did not state in his examination-in-chief that the
four cheques in question were not given on or about the dates they bear. In
his cross-examination DW1, he admitted to having issued the said cheques.
Even at that stage he did not seek to volunteer that the said cheques were not
dated when issued by him. A witness cannot be permitted to resile from his
admission upon re-examination being permitted by the Court.
23. Therefore, in my view, the re-examination of DW1, particularly, in
relation to the four cheques (Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and
Ex.CW1/E) could not have been permitted and the said re-examination
cannot be read or looked into. Secondly, it is pertinent to note that the
accused, while claiming that the four cheques (Ex.CW1/B, Ex.CW1/C,
Ex.CW1/D and Ex.CW1/E) had not been issued on the dates that they bear,
thereby implying that the dates had been filled up by the complainant, did
not chose to lead any evidence. In this respect, neither a report of a
handwriting expert was produced, nor the accused sought the reference of
the said cheques to the CFSL for their report. This conduct of the accused
clearly militates against the defence set up by the accused.
24. Thus, in my view, the complainant has succeeded in establishing the
commission of the offence under Sectin 138 of the Act by the accused in
respect of the four cheques (Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and
Ex.CW1/E) beyond reasonable doubt. The defence set up by the respondent
cannot be said to be a probable one. The fact remains that there was
admitted liability to the tune of Rs. 3,50,000/- of the accused and he had
issued the four cheques in question in partial discharge of the said liability.
25. Thus, the appeal is allowed. The respondent is convicted for the
offence punishable under Section 138 of the Act.
26. List on 02.02.2015 for pronouncement of the sentence. The
respondent shall personally remain present in Court on the next date.
VIPIN SANGHI, J
JANUARY 20, 2015
sr/sl
