Arun Kumar Jhagta vs Narvir Bhota
2023 Latest Caselaw 4940 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MMO No.201 of 2023 Decided on: 1st May, 2023

.

_________________________________________________________________

Arun Kumar Jhagta ....Petitioner

Versus

Narvir Bhota ...Respondent _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

1 Whether approved for reporting?

For the petitioner:

r to _________________________________________________________________ Mr. G.D.Verma, Senior Advocate with Mr. Sumit Sharma, Advocate.

For the respondent: Mr. Bhupinder Singh Kanwar, Advocate.

Jyotsna Rewal Dua, Judge

The petitioner is an accused in the proceedings

initiated by the respondent under Section 138 of Negotiable

Instruments Act (the Act in short). His application moved

under Section 311 of Code of Criminal Procedure (Cr.P.C. in

short), at the stage of arguments, was dismissed by the

learned Trial Court on 08.02.2023. The matter was fixed for

arguments on 24.02.2023. The arguments were advanced and

concluded on 24.02.2023. The matter was put for

Whether reporters of Local Papers may be allowed to see the judgment?

pronouncement of judgment on 13.03.2023. It is at this stage,

the petitioner invoked the inherent jurisdiction of this Court

under Section 482 Cr.P.C. and assailed the previous order

.

dated 08.02.2023, whereby his application under Section 311

Cr.P.C. was dismissed.

2. The relevant factual matrix is that :-

2(i) on 30.07.2016, the respondent-complainant filed

a complaint against the petitioner-accused under Section 138

of the Act. The grievance in the complaint was that a cheque

amounting to Rs.4,00,000/-, issued by the petitioner-accused

in favour of the respondent-complainant, was dishonoured by

the bank due to insufficient funds in the account of the

petitioner-accused. The complaint carried an averment that

the respondent-complainant had good equation with the

petitioner-accused as they had worked together in different

businesses.

2(ii) The statement of the petitioner-accused was

recorded under Section 313 Cr.P.C on 06.01.2022 and the

matter was ordered to be listed for petitioner's evidence (DWs)

for 21.02.2022. Learned counsel for the respondent-

complainant has produced certified copies of zimini orders

passed in the complaint by the learned Trial Court. These

zimni orders reflect that despite grant of repeated

opportunities, the petitioner-accused did not lead his

.

evidence. Vide order dated 24.08.2022, learned Trial Court

accordingly closed the defence evidence and the matter was

fixed for arguments.

At this stage, the petitioner-accused moved an

application under Section 45 of the Evidence Act with the

averments that the cheque (Ex.DA) issued by the respondent-

complainant and the signatures appended thereupon by the

respondent-complainant have been denied by him, therefore,

these signatures are required to be proved from the

Government Examiner of Questioned Documents. Learned

Trial Court dismissed this application on 23.11.2022. The

order has been accepted by the petitioner-accused.

The petitioner-accused then moved another

application under Section 311 Cr.P.C. It was pleaded therein

that his defence in the instant case is that he and respondent-

complainant were partners in the apple business and had

exchanged cheques as security. The factum of partnership

between two had been denied by the respondent-complainant

in the instant case whereas, the respondent-complainant had

admitted the petitioner-accused to be his partner during

cross-examination in another case. Therefore, there was

.

necessity to place on record statements of witnesses recorded

in the other Case No. 100-3 of 2015, (Raghuvir Singh Vs.

Narvir Bhota).

The respondent-complainant filed reply to the

aforesaid application and denied the assertions of the

petitioner-accused. He denied having admitted the petitioner-

accused to be a partner in apple business. The further stand

taken was that statements of witnesses and their cross-

examination in the other Case No. 100-3 of 2015 (Raghuvir

Singh Vs. Narvir Bhota) had no evidentiary value in the

present case. On considering the application, learned Trial

Court vide order dated 08.02.2023, dismissed the same, giving

cause of action to the petitioner-accused to prefer the present

petition.

3. Learned Senior Counsel for the petitioner-

accused invited attention to law laid down in Latest HLJ

2018 (2) (HP) 941 Dola Ram Vs. Kisan Chand), (2017) 9

SCC 340 (Ratanlal Vs. Prahlad Jat and others), (2019) 14

SCC 220 ( Chenadi Jalpathi Reddy Vs. Baddam )Pratapa

Reddy (dead) through legal representatives and another)

and (2021) 3 SCC 661 (V. N. Patil Vs. K. Niranjan Kumar

.

and others). Emphasis was placed on the observations of the

Hon'ble Apex Court in V.N. Patil's case supra, wherein it was

held that the object underlying Section 311 Cr.P.C 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 for exercise of power

under Section 311 Cr.P.C is whether it is essential to the just

decision of the case. The significant expression that occurs

under Section 311 of Cr.P.C is "at any stage of any inquiry or

trial of other proceedings under this Code".

Learned counsel for the petitioner submitted that

in view of the pleadings in the complaint itself, prayer of the

petitioner-accused in his application under Section 311

Cr.P.C. deserves to be allowed as the statements intended to

be brought on record would have shown that petitioner was a

partner with the respondent-complainant and in that

partnership, cheques were exchanged between the two as

security. The respondent-complainant had misused the

cheque given to him by the petitioner-accused and filed

instant complaint.

.

Learned counsel for the respondent-complainant

defended the impugned order and submitted that the

petitioner's only attempt in the entire trial has been to linger

on the matter on one pretext or the other.

4. I have heard learned senior counsel for the

petitioner-accused and learned counsel for the respondent-

complainant and have also gone through the case record. I am

inclined to accept the submissions for the respondent-

complainant for the following reasons: -

4(i) The complaint was instituted by the respondent-

complainant in the year 2016. The petitioner-accused was

served with the complaint in the year 2016 itself. His

statement on oath was recorded under Section 313 Cr.P.C on

06.01.2022. In response to certain questions put to him, the

petitioner-accused stated having exchanged the cheques with

the respondent-complainant towards security in the

partnership business, alleged to have been carried out by him

with the respondent-complainant. He denied having any

financial liability towards the respondent-complainant.

Despite this, no steps were taken by the petitioner-accused to

lead any defence evidence in spite of having been afforded

.

several opportunities to do so.

4(ii) Repeated opportunities were granted to the

petitioner-accused for leading defence evidence. The petitioner

did not make use of these opportunities. On 28.06.2022, final

opportunity was granted to the petitioner for examination of

DWs and the matter was ordered to be fixed for 24.08.2022.

No DWs were present before the Court on 24.08.2022, hence,

defence evidence was closed. The petitioner accused then

moved an application under Section 45 of Evidence Act with

the prayer to send the cheque in question for ascertaining the

signatures on the cheque. At this stage also, the petitioner

accused did not move any application for producing the copies

of statements of witnesses in Case No. 100-3 of 2015,

(Raghuvir Singh Vs. Narvir Bhota). His application moved

under Section 45 of Evidence Act was dismissed by the

learned Trial Court on 23.11.2022. This order has attained

finality. It is only thereafter, the petitioner-accused moved the

application in question under Section 311 Cr.P.C for

producing copies of statements of witnesses recorded in

another case. No explanation has been given in the application

as to why the same could not have been moved by him earlier.

.

As per the averments made in the application under Section

311 Cr.P.C., the statements of the witnesses, which the

petitioner now wants to place on record in the instant case,

were recorded on 11.10.2017. Had the petitioner-accused been

vigilant, the application could have been moved earlier.

    4(iii)      The
                  r     petitioner-accused           could          have         put

documents now sought to be adduced in evidence to the

respondent-complainant during his cross-examination. That

course was also not adopted by the petitioner-accused. The

Hon'ble Apex Court in V.N.Patil's case has also held that it has

to be borne in mind that the discretionary power conferred

under Section 311 Cr.P.C is to be exercised judiciously, as it is

always said "wider the power, greater is the necessity of

caution while exercise of judicious discretion". The

discretionary power vested under Section 311 Cr.P.C has to be

exercised judiciously for strong & valid reasons and with

caution and circumspection to meet the ends of justice.

5. Conclusion

Petitioner's defence evidence was already closed as

.

he had not availed repeated opportunities granted to him for

the purpose. The order closing petitioner's defence evidence

was accepted by him. Petitioner's application moved under

Section 45 of the Evidence Act was dismissed by the learned

Trial Court on 23.11.2022. This order has also become final.

Petitioner-accused moved the application under Section 311

Cr.P.C at the stage of arguments which was dismissed by the

learned Trial Court on 08.02.2023. The petitioner did not even

agitate the order at that stage. He allowed the case to proceed

further. The matter was fixed for arguments for 24.02.2023.

The learned Trial Court heard the arguments advanced by

both the sides on 24.02.2023 and the matter was ordered to

be fixed for pronouncement of judgment for 13.03.2023. It is

at this intervening stage, the petitioner has moved the present

petition against the earlier order dated 08.02.2023. I am not

inclined to exercise discretion in favour of the petitioner-

accused. Not only several opportunities were granted to the

petitioner to lead evidence, which he did not avail, but the

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record shows that the petitioner-accused had been making

endeavours to drag the litigation. His application under

Section 45 of Evidence Act was dismissed on 23.11.2022. After

.

dismissal of the application, the petitioner again took a chance

on 06.12.2022 and moved an application under Section 311

Cr.P.C. to lead evidence for brining on record statements of

witnesses recorded on 11.10.2017 in another case. These

documents were not put to the respondent-complainant at the

time of his cross-examination. It was for the petitioner-

accused to seek appropriate remedy in accordance with law at

an appropriate stage. In the given facts, learned Trial Court

did not commit any error in dismissing this application.

In view of the above, there is no merit in the

present petition. The same is dismissed accordingly. The

pending miscellaneous application(s), if any, also stand

disposed of.

Jyotsna Rewal Dua Judge May 1, 2023 R.Atal