Sanjay Dubey vs Omprakash
2023 Latest Caselaw 15770 MP

                                                                                        1



                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                                       AT I N D O R E
                                                                                BEFORE
                                                  HON'BLE SHRI JUSTICE ANIL VERMA
                                                       ON THE 25th OF SEPTEMBER, 2023
                                                 MISC. CRIMINAL CASE No. 10488 of 2023

                          BETWEEN:-
                          SANJAY DUBEY S/O LATE SHRI OMPRAKASH
                          DUBEY, AGED ABOUT 37 YEARS, OCCUPATION:
                          BUSINESS, R/O 176, PRIME CITY, SUKHLIYA,
                          INDORE    DISTRICT    INDORE    (MADHYA
                          PRADESH)
                                                                                                                           .....PETITIONER
                          (BY MS. MEGHA JAIN - ADVOCATE)

                          AND
                          OMPRAKASH S/O RAGHUNANDAN SINGH,
                          AGED ABOUT 42 YEARS, OCCUPATION:
                          BUSINESS, R/O 36, SECTOR-B, SLICE I, SCHEME
                          NO. 78 INDORE DISTRICT INDORE (MADHYA
                          PRADESH)
                                                                                                                         .....RESPONDENT
                          (NONE FOR THE RESPONDENT THOUGH SERVED)
                          .................................................................................................................................
                                    This petition coming on for orders this day, the court passed the
                          following:
                                                                                 ORDER

The petitioner has filed this petition under Section 482 of Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') being aggrieved by the impugned order dated 26/07/2022 passed in Criminal Case No.16225/2012, whereby an application preferred by the respondent / complainant under Section 311 for re-examination of the complainant

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/27/2023 12:42:11 PM

has been allowed.

2. The facts giving rise to the present petition in brief are that in the year 2012 the respondent / complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (in short, 'NI Act') and Section 420 of Indian Penal Code, 1860 (in short, 'IPC') alleging that present petitioner / accused has issued a cheque bearing number 033284 of an amount of Rs.50,000/- to the respondent, which got dishonoured by the Bank.

3. Before the trial Court, both the parties have examined their witnesses and at the stage of final argument, respondent / complainant has filed an application under Section 311 of Cr.P.C. for re-examination of the petitioner in light of the certain documents provided by the Axis Bank. After hearing both the parties, the trial Court has allowed the application at a cost of Rs.1,000/- payable at the time of delivery of judgment. Being aggrieved by the impugned order, petitioner has filed this petition.

4. Learned counsel for the petitioner submits that respondent has filed various applications on various dates just to starch and linger on the matter. When the case was fixed for delivery of judgment, the petitioner had filed an application for rectification of documents, which was rejected by the trial Court. Thereafter, petitioner again filed a similar application, which was also rejected by the trial Court and the same order is upheld by the co-ordinate Bench of this Court. Respondent is keeping the case pending with mala fide intention and on the basis of the pending status of the said petition, he is trying to get the case adjourned before the trial Court. The intention of the respondent is just to fill-up the lacuna in the case. Matter is pending since 2012 and at this belated

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/27/2023 12:42:11 PM

stage, such a prayer cannot be accepted. The trial Court has not used his discretion in a right way. Hence, she prays that impugned order be set aside.

5. Despite service of notice, nobody has marked appearance on behalf of the respondent.

6. Heard learned counsel for the petitioner at length and perused the record.

7. From perusal of the impugned order passed by the trial Court, it appears that after completion of the trial, the respondent / complainant has obtained certain new documents, which relates to the Proprietorship of the petitioner / accused Firm. It is also alleged that letter of authority has also been issued in favour of the petitioner / accused. Therefore, in view of the new documents filed by the respondent re-examination of the petitioner / accused is just and proper.

8. The scope and object of Section 311 of Cr.P.C. 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. It is also notable that such power must be exercised judiciously and not capriciously or arbitrarily, therefore, it is not a case of lacuna.

9. In support of her contention, learned counsel for the petitioner relied upon the judgment delivered by the apex Court in the case of Ratanlal Vs. Prahlad Jat and Others reported in (2017) 9 SCC 340, in which it has been held that "delay in filing application for recalling a witness is one of the important factors which has to be explained in the application and delayed application for recalling the witness cannot be allowed".

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/27/2023 12:42:11 PM

10. Hon'ble the apex Court in the case of Rajendra Prasad Vs. Narcotic Cell, through the office in-charge, Delhi reported in AIR 1999 SC 2292 has laid down the principle as under:

"Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. 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. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus (para 27) :

"It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."

Dealing with Corresponding Section in the old Code Section 540. Hidyatullah Jias the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra, [1967] 3 SCR 415 as follows (para 14 of AIR and Cri.LJ):-

"It would appear that in our criminal jurisdiction, statutory law Confers a power in

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/27/2023 12:42:11 PM

absolute terms to be exercised at any stage 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 exercise 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."

11. Learned counsel further relied upon the judgment delivered by this Court in the case of Khoob Singh Vs State of M.P. reported in 2018 (3) MPJR(2) in para 17 wherein it has been held as under:

"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 re- examine 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."

12. The trial Court has passed the impugned order after considering all the facts and circumstances of the case. On cumulative consideration of the facts of the present case, this Court is of the view that the impugned order of the trial Court does not suffer from any legal infirmity, which may be called for any interference, therefore, present petition filed under Section 482 of Cr.P.C. is hereby dismissed.

Certified copy as per rules.

(ANIL VERMA) J U D G E Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/27/2023 12:42:11 PM