Punjab-Haryana High Court
Vasudev vs Dharmender Kumar on 10 November, 2022
CRM-M-30884-2018 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM-M-30884-2018
Date of Decision: 10.11.2022
Vasudev
.... Petitioner
Versus
Dharmender Kumar
.... Respondent
CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: - Mr. Sandeep Kumar, Advocate for
Mr. Vikram Singh, Advocate for the petitioner.
Mr. Govind Tanwar, Advocate for
Mr. Kanwal Goyal, Advocate for the respondent.
ASHOK KUMAR VERMA, J. (ORAL)
1. Prayer in this petition filed under Section 482 Cr.P.C. is for
setting aside the order dated 05.07.2018 (Annexure P-3) passed by the
Judicial Magistrate Ist Class, Mahendergarh, in Criminal Complaint
No. RT-151 dated 16.01.2015 titled 'Vasudev Vs. Dharminder Kumar',
filed under Section 138 of the Negotiable Instruments Act, 1881,
(hereinafter referred to as-'the Act') whereby the application dated
05.05.2018 (Annexure P-1) filed by the petitioner under Sections 65 and
66 of the Indian Evidence Act, 1872 for not considering the documents in
question as Ex. DW-2/A (Annexure P-2) was dismissed, on the ground
that the objection of the petitioner qua the same controversy is noted
down in the examination of DW-2 as "objected to" and the said question
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was left open to be decided at the time of final hearing.
2. Briefly, respondent-Dharmender Kumar, issued a cheque
No. 055934, dated 05.11.2014 amounting to Rs.5,00,000/- of Sarv
Haryana Gramin Bank, Branch Shopping Complex, Mahendergarh in
favour of the petitioner on account of discharging his financial liability.
On presentation, the said cheque was dishonoured vide memo dated
08.11.2014 with remarks 'insufficient balance'. Thereafter, the petitioner
served a legal notice dated 05.12.2014 upon the respondent and
subsequently filed complaint under Section 138 of the Act on 16.01.2015.
In defence evidence, the respondent examined Sh. Ravi Kumar, Assistant
Manager, Sarv Haryana Gramin Bank as DW-2, who tendered in
evidence a photocopy of letter (Annexure P-2) as Ex. DW-2/A upon
which the petitioner had raised objection on the ground that the said
document is a photocopy and not original, therefore, the same cannot be
exhibited. Thereafter, the petitioner moved an application dated
05.05.2018 (Annexure P-1) for not considering the document as
Ex. DW-2/A without the original record which was dismissed by the trial
Court vide impugned order dated 05.07.2018 (Annexure P-3) on the
ground that the objection of the petitioner qua the same controversy was
noted down in the examination of DW-2 as "objected to" and the said
question was left open to be decided at the time of final hearing. Hence,
the present petition.
3. Learned counsel for the petitioner inter alia contends that the
objection regarding the admissibility of the document in question raised
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by the petitioner should have been decided by the trial Court at the stage
of admission itself, instead of leaving it open to be decided at the time of
final hearing. He further contends that in case, the objection is left open
till the final decision of the case, the petitioner shall not be able to
address arguments qua this document in the absence of final decision qua
its admissibility. In support of his contentions, learned counsel for the
petitioner has relied upon judgments in (i) Javer Chand vs. Pukhraj
Surana, 1961 AIR (SC) 1655; (ii) Shalimar Chemical Works Ltd. vs.
Surender Oil and Dal Mills (Refineries) and others, 2010(8) SCC 423;
(iii) Suernder Bala vs. M/s Sandeep Foam Industries P. Ltd. 2000(2)
RCR (Rent) 28 and (iv) Sahil Kumari vs. Saraswati Devi, 96 (2002)
DLT 131.
4. On the other hand, controverting the arguments raised by
learned counsel for the petitioner, learned counsel for the respondent
contends that the question regarding admissibility of the document Ex.
DW-2/A being the photocopy has been kept open by the trial Court which
would be decided at the time of final arguments. The application dated
05.05.2018 (Annexure P-1) has rightly been dismissed by the trial Court
as the same has been filed only to delay the proceedings. In support of
his contentions, learned counsel for the respondent has relied upon a
judgment passed by the High Court of Orissa at Cuttak in C.M.P. No.
530 of 2022, titled as Babita Satpaty @ Mishra vs. Sitanshu Kumar
Dash and others, decided on 03.08.2022.
5. I have heard learned Counsel for the parties and gone
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through the relevant record.
6. Perusal of the impugned order shows that in defence
evidence, the respondent examined Sh. Ravi Kumar, Assistant Manager,
Sarv Haryana Gramin Bank as DW-2, who tendered in evidence a
photocopy of letter dated 09.12.2013 (Annexure P-2) as Ex. DW-2/A
upon which the petitioner had raised objection qua its admissibility as the
said document is a photocopy and not the original. The trial Court after
hearing the parties dismissed the said application moved by the petitioner
raising the said objection vide impugned order dated 05.07.2018
(Annexure P-3) observing that the case is at the final stage of defence
evidence, if any, and arguments and no prejudice is going to be caused to
the applicant-petitioner because the objection of the petitioner regarding
admissibility of the document in question was kept open to be decided at
the time of final arguments. Further, once a document has been exhibited
with objection, the same cannot be expunged from the evidence of the
party unless circumstances thereto are established. In the instant case, the
issue raised by the petitioner is not a ground to expunge a document
already marked as exhibit. Hence, the impugned order warrants no
interference.
7. More so, the Hon'ble Supreme Court in Bipin Shanti Lal
Panchal vs. State of Gujarat and another, (2001) 3 SCC 1, has held that
such practices when realised through the course of long period to be
hindrances which impede steady and swift progress of trial proceedings,
must recast and remoulded to give way for better substitutes which would
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help acceleration of trial proceedings.
8. In view of the above, I find no infirmity in the impugned
order dated 05.07.2018 (Annexure P-3). The instant petition being
meritless is dismissed.
November 10, 2022 (ASHOK KUMAR VERMA)
rishu JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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