Sandeep Singh vs Ranjana Gawri
2019 Latest Caselaw 4556 Del

$~55
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 24.09.2019
+     CRL.M.C. 4853/2019
      SANDEEP SINGH                                         ..... Petitioner
                          Through       Mr.Rajiv Bajaj, Adv.

                          versus

      RANJANA GAWRI                          ..... Respondent
                   Through  Mr.Shivendra Singh, Adv.
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

Crl. M.A. 36778-79/2019

1. Allowed, subject to all just exceptions.

2. Applications are disposed of.

Crl.M.C.4853/2019 & Crl.M.A. 36780/2019

3. Notice issued.

4. Learned counsel accepts notice on behalf of the respondent and with

the consent of the counsel for the parties, the present petition is taken up for

final disposal.

5. Vide the present petition, the petitioner seeks direction thereby to set

aside the impugned order dated 05.08.2019 passed by the learned MM, West

District, Tis Hazari Courts, Delhi in Complaint Case No.7026 of 2017.

6. Brief facts of the case are that the respondent herein has filed a

complaint under section 138 of the Negotiable Instruments Act, 1881 against

the petitioner on the basis of cheque, bearing No.956138 drawn on Punjab

National Bank, Chandni Chowk for an amount of ₹5,00,000/- dated

01.09.2017. The cheque in question was issued by the partnership concern

M/s. H.R. Sons and the said cheque was signed by Late Sh. Kulvinder

Singh.

7. As per the case of the respondent, the said cheque was handed over to

the respondent and, on presentation, the same was dishonoured for the

reason "Account Closed". Learned Trial Court summoned the petitioner

vide order dated 07.11.2017 for the next date of hearing, i.e.,12.03.2018.

Thereafter, on 12.03.2018, the petitioner was admitted to bail and at joint

request, the matter was referred to the mediation cell and fixed for further

proceedings on 03.07.2018. On the said date, the petitioner showed a copy

of Deed of Dissolution of the Partnership concern M/s. H.R. Sons dated

10.04.2006 and the matter was fixed for hearing on maintainability on

18.09.2018. However, after framing of notice on 03.07.2018, the learned

Trial Court has fixed the case for maintainability on 18.09.2018 and it was

observed that in view of defence taken by the petitioner, the complainant's

evidence was dispensed with and the case was adjourned for 11.12.2018 for

the purpose of recording the defence evidence. But unfortunately in the

month of October 2018, the aunt (Taiji) of the petitioner, Smt. Bhupinder

Kaur who resided with and was dependent upon the petitioner, was

undergoing treatment for breast cancer. The said aunt had one son and two

daughters. The son is a special child and both the daughters are married.

Thus, it was not possible for them to visit Smt. Bhupinder Kaur so often.

However, on 03.02.2019, she expired. As the petitioner was recovering from

the same, he could not contact his counsel and prepare his defence. But on

07.05.2019, right of the petitioner to lead the defence evidence stood closed

and the matter was listed for final arguments on 01.07.2019.

8. Further case of the petitioner is that he moved an application under

Section 311 of the Code of Criminal Procedure for calling the complainant

for cross-examination and vide order dated 05.08.2019, the Learned Trial

Court dismissed the same.

9. Being aggrieved, the petitioner filed a criminal revision petition

bearing no.304 of 2019 on 11.09.2019 before the Sessions Court challenging

the order dated 05.08.2019, however, the same was dismissed as withdrawn

as not maintainable vide order dated 21.09.2019.

10. Counsel further submits that the respondent/complainant also filed a

civil suit before Learned ADJ, Central District being CS(OS) No. 6102 of

2018 titled as "Ranjana Gawri vs. Sandeep Singh", seeking recovery of

₹26,56,500/- which is pending adjudication.

11. It is further submitted that the respondent has taken completely

different stands in his plaint and his complaint. While in the plaint, he has

stated that the cheque in question was handed over by the father of the

Petitioner, whereas, in the complaint filed under section 138 of NI Act, he

said that the said cheque was handed over by the Petitioner. Thus, the

respondent has committed forgery.

12. Also submitted that father of the petitioner expired on 08.07.2014.

Clause (c) of Section 42 of the Indian Partnership Act, 1932 deals with the

dissolution of a firm on the happening of certain contingencies and the firm

is dissolved by the death of a partner. Hence, the partnership concern stood

dissolved after the death of his father.

13. Learned counsel further submits that it is necessary for a fair trial that

the petitioner is given an opportunity to adduce defence evidence to present

a proper and just defence against the allegations made by the complainant.

Further, no legally enforceable debt liable to be recovered against the

Petitioner by the complainant/respondent exists. The impugned order has

been passed without any basis as the procedure adopted by the court below

is against the law. The court did not give an opportunity to lead evidence nor

application under section 145(2) of N.I Act was permitted to be moved. The

court below has not recorded any statement under section 313 Cr.P.C. of the

respondent/complainant.

14. To strengthen his arguments, learned counsel for the petitioner has

relied upon the case of Duni Chand vs. Godawari in Cr.Memo

No.349/2016 decided on 12.07.2017 by the High Court of Himachal Pradesh

at Shimla. While referring the judgments of Hon'ble Supreme Court in para

16 and based upon that, in the said judgement it was held that the following

principles will have to be borne in mind by the courts while dealing with an

application under section 311 Cr.P.C.:

"17.1. 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?

17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C 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.

17.3. 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 reexamine any such person.

17.4. The exercise of power under Section 311 Cr.P.C. 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. 17.5. 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.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. 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.

17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

17.9. 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.

17.10. 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.

17.11. 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. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. 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. 17.14. The power under Section 311 Cr.P.C. 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."

15. Thus, the counsel for the petitioner submits that the Petitioner could

not get an opportunity to place his defence before the court below and the

case is listed for arguments. Thus, there is probability of his getting

convicted unnecessarily. Furthermore, the grounds which can be taken

before the Trial Court would not be allowed in the appeal.

16. On the other hand, learned counsel appearing on behalf of the

respondent submits that the petitioner was summoned vide order dated

11.07.2017 and he appeared on 12.03.2018, thereon, bail was granted and at

joint request, the matter was referred to mediation. However, mediation

failed. Thereafter, on 30.07.2018, notice under section 251 Cr.P.C. was

framed. Had the petitioner been aggrieved by the order dated 30.07.2018, he

would have challenged the same before the appropriate forum, however, he

failed to do so. Thereafter, on 18.09.2018, CE was dispensed with and the

case was listed for defence evidence on 11.12.2018. But the petitioner failed

to lead defence evidence. Consequently, last opportunity was granted to the

petitioner with cost of ₹5,000/- and thereafter the matter was fixed for

28.02.2019. However, on the said date, the learned Presiding Officer was on

leave and the matter was fixed for 07.05.2019. Even on the said date, the

petitioner failed to place on record his defence evidence. Therefore, finding

no alternative, learned Trial Court closed the DE and the matter was fixed

for final arguments on 05.08.2019.

17. The fact remains that on 12.03.2018, the matter was referred to

mediation and thereafter on 30.07.2018, the order was passed by the Trial

Court on two counts (i) Framing of notice under section 251 Cr.P.C. and (ii)

listing on 18.09.2018 on maintainability of the complaint. Once notice is

framed under section 251 Cr.P.C., the matter shall be decided after recording

the evidence of both the parties. Had the Trial Court been of the view that

there was some issue relating to maintainability, the Trial Court would not

have framed the notice under section 251 Cr.P.C. on 30.07.2018.

18. Be that as it may, since the petitioner did not challenge the order dated

30.07.2018, that order attained finality. However, vide the present petition,

order dated 05.08.2019 is under challenge, whereby, the learned Trial Court

has dismissed the application under section 311 Cr.P.C. and fixed the matter

for final hearing.

19. It is not in dispute that after framing of notice under section 251

Cr.P.C., the complainant's evidence was dispensed with. Thus, the petitioner

could not get a chance to cross examine the respondent. He moved an

application under section 311 Cr.P.C. and the same was dismissed. Thus,

there is no defence on record from the side of the petitioner. In that

eventuality, if there is no defence of the petitioner, the Trial Court has no

option but to convict the petitioner.

20. It is pertinent to mention here that despite last opportunity granted

vide order dated 11.12.2018, the petitioner failed to place on record the

evidence. However, the fact remains that on the next date of hearing,

i.e.28.02.2019, the Presiding Officer was on leave. Thus, the learned Trial

Court should have considered the application under section 311 Cr.P.C., so

that some material could come on record to decide the case fairly.

21. Accordingly, I hereby set aside the order dated 05.08.2019 passed by

the Learned Trial Court. Consequently, the court is directed to give one

opportunity to the petitioner to cross examine the respondent/complainant

with cost of ₹25,000/-. Out of the cost amount, ₹10,000/- shall be paid in

favour of the Library Fund, Bar Association, Tis Hazari Courts and

₹15,000/- in favour of the respondent/complainant.

22. The petition is, accordingly, allowed and disposed of.

23. Order dasti.

(SURESH KUMAR KAIT) JUDGE SEPTEMBER 24, 2019/ab