Delhi High Court
Harjeet Singh vs Gurmeet Singh & Anr. on 11 September, 2018
$~2
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th September, 2018
+ CRL.M.C. 1516/2015 and Crl.M.A.5565/2015
HARJEET SINGH ..... Petitioner
Through: Mr. Dinesh Garg, Advocate with
petitioner in person.
versus
GURMEET SINGH & ANR. ...... Respondents
Through: Mr. A.K.Dubey, Advocate with
Mr. Jaan Mohd. Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
O R D E R (ORAL)
1. The petitioner was tried as an accused in complaint case (CC
No.146/2004) instituted by the respondent on charge for the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881
on the facts that he had not made any payment pursuant to the notice
of demand issued and served in the wake of dishonor of a post-dated
cheque bearing No.609496 dated 15.11.2003 of Rs.5,00,000/-, drawn
on Central Bank of India, Shahdara, Delhi.
2. The trial court judgment dated 11.07.2012 would show that the
petitioner had, inter alia, taken the plea that there was no liability or
debt due. He had examined one Ranjeet Singh (DW-1) in defence
with reference to a receipt Ex.CW1/DA, dated 30.08.2000 indicating
the sale of the bus against consideration of Rs.1,50,000/- and he
having received the entire consideration there against. The said
witness (DW1), the petitioner (the convict) and the respondent (the
complainant) are real brothers.
3. The complaint, the facts whereof have been noted in the
judgment dated 11.07.2012, also confirmed that the cheque was issued
in the context of the sale of the bus bearing No.DL-1PA-4031 by the
complainant in favour of the convict. The said judgment of conviction
returned by the trial court is presently under challenge before the first
appellate court by Criminal Appeal No.04/2012.
4. In the course of hearing on the said appeal before the court of
Sessions, the petitioner had moved an application under Section 311
of the Code of Criminal Procedure, 1973 (Cr.P.C.) for recall of the
complainant (PW-1) for further cross-examination. The said
application was treated by the appellate court as an application under
Section 391 Cr.P.C. The object and purport of the said application
essentially was to confront the complainant with another document
purporting to be executed by the complainant on 08.09.2000 at the
time of sale of the bus and handing over of the cheque in question. As
per the said document, the complainant had indicated that there was a
loan taken by him against the said bus, the liability for repayment
whereof had been undertaken by the petitioner at the time of purchase
of the bus and, for this purpose, the cheque had been issued in the sum
of Rs.5,00,000/- but kept undated, the cheque to be returned upon
repayment of the loan by the petitioner on behalf of the complainant
and, in case the payment of the loan was not made, the complainant
was to encash the same for repayment of the loan by him directly.
5. It is the contention of the petitioner that he had repaid the loan
in the name of the complainant and that he is in possession of
documents to such effect which are also to be proved to substantiate
the defence, thus, taken.
6. The prayer in the application was opposed and the objection
was upheld by the first appellate court by the impugned order on the
ground that the plea now taken is not in sync with the plea earlier
taken and that a new case is being set up. The explanation of the
petitioner, in contrast, is that the document dated 08.09.2000 in
question had been handed over to the counsel who was assisting the
petitioner in defence before the trial court, and it is he who failed to
take the necessary steps in that regard.
7. In the above facts and circumstances, it appears just and proper
that the petitioner be granted opportunity to lead additional evidence
during the pendency of the appeal. The prayer under Section 391
Cr.P.C. for additional evidence to bring home the above facts should
have been granted to the petitioner. After all, the quest of a trial is to
reach out to the truth. The defence of the petitioner remains
essentially the same as was set up before the trial court, it being, that
there was no liability due on his account. If he is able to bring home
the fact that the bus was under charge of the lender of money to the
complainant prior to the sale of the vehicle to the petitioner and if he is
able to also substantiate that he (the petitioner) had repaid the said
loan for and on behalf of the complainant, such repayment, it having a
bearing on the sale consideration, the petitioner might be able to bring
home his defence that there was no amount due, the purpose and
object of handing over of the cheque in such case possibly being not
what was projected by the complainant in the first place in his case.
8. But, it cannot be ignored at the same time that such defence
should have been taken and the necessary evidence led when the
matter was pending trial in the court of Magistrate. The delay
occasioned by this move, however, can always be compensated by
imposing costs.
9. Thus, the impugned order of the first appellate court is set aside.
The prayer under Section 391 Cr.P.C. is granted, subject to costs of
Rs.25,000/- to be paid to the complainant by demand draft, which
shall be in the name of the complainant, to be delivered before the trial
court before the next date of hearing. The first appellate court will
proceed in this light further in accordance with law.
10. The petition and the application filed therewith are disposed of.
R.K.GAUBA, J.
SEPTEMBER 11, 2018
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