Punjab-Haryana High Court
Vijay Grover Properitor vs M/S Malik Finance Company on 29 January, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
Neutral Citation No:=2024:PHHC:014361
2024:PHHC:014361
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-4402-2024 (O&M)
Date of Decision: 29.01.2024
Vijay Grover ......Petitioner
Versus
M/s Malik Finance Company ......Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present: Mr. Namit Khurana, Advocate, for the petitioner.
GURVINDER SINGH GILL, J.
1. The petitioner assails order dated 21.11.2023 (Annexure P-4) passed by the
learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, vide which
an application filed by the petitioner for recalling the
respondent/complainant for further cross-examination has been declined.
2. The petitioner is arrayed as an accused in the complaint under Section 138 of
the Negotiable Instruments Act filed by the respondent with respect to
dishonor of a cheque for an amount of Rs.4 lakhs which the petitioner had
allegedly issued in discharge of his liability i.e. to return the loan amount.
3. After the complainant had concluded his evidence, the statement of the
petitioner/accused in terms of Section 313 Cr.P.C. was recorded on
20.12.2022. Thereafter, the petitioner availed some opportunities for leading
defence evidence, but later filed an application under Section 311 Cr.P.C.
seeking recalling of the complainant for further cross-examination. The said
application dated 19.09.2023 was, however, dismissed by the learned
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Judicial Magistrate Ist Class vide impugned order dated 21.11.2023
(Annexure P-4), which is being assailed in this Court.
4. Learned counsel for the petitioner submits that some material questions
pertaining to the relevant issues could not be put to the complainant during
the course of his cross-examination and that for just decision of the matter
and for eliciting the truth, the same are required to be put to the complainant
and as such, recalling of the complainant for his further cross-examination is
necessary. Learned counsel further submits that in case the petitioner is not
permitted to recall the complainant for his further cross-examination, the
petitioner shall stand seriously prejudiced in establishing his defence. It has
been submitted that the law with regard to recalling is fairly liberal and an
application under Section 311 Cr.P.C. can be allowed at any time before
pronouncement of the judgment.
5. This Court has considered the aforesaid submissions.
6. Before proceeding further, it would be necessary to examine the relevant
provisions of law:-
"Section 311 Cr.P.C. reads as under:-
"Any court may, at any stage of any inquiry, trial or other proceedings
under this code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall and re-examine
any person already examined; and the court shall summon and examine or
recall and re-examine any such person if his evidence appears to be
essential to the just decision of the case."
7. The provisions of Section 311 Cr.P.C. have been interpreted in a number of
decisions of the Hon'ble Supreme Court. The object of Section 311 Cr.P.C.
(earlier 540 Cr.P.C) as well as limitation for its use came to be defined by
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Hon'ble Apex Court in Mohan Lal Shamji Soni v. Union of India, 1991(3)
RCR (Criminal) 182. Para 10 wherein its importance has been highlighted
reads as under:
"10. It is a cardinal rule in the law of evidence that the best available evidence
should be brought before the Court to prove a fact or the points in issue.
But it is left either for the prosecution or for the defence to establish its
respective case by adducing the best available evidence and the Court is not
empowered under the provisions of the Code to compel either the
prosecution or the defence to examine any particular witness or witnesses
on their sides. Nonetheless if either of the parties with-holds any evidence
which could be produced and which, if produced, be unfavourable to the
party withholding such evidence, the court can draw a presumption under
illustration (g) to Section 114 of the Evidence Act. In such a situation a
question that arises for consideration is whether the presiding officer of a
Court should simply sit as a mere umpire at a contest between two parties
and declare at the end of the combat who has won and who has lost or is
there not any legal duty of his own, independent of the parties, to take an
active role in the proceedings in finding the truth and administering justice?
It is a well accepted and settled principle that a Court must discharge its
statutory functions-whether discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not only to do justice but
also to ensure that justice is being done. In order to enable the Court to find
out the truth and render a just decision, the salutary provisions of Section
540 of the Code (Section 311 of the New Code) are enacted whereunder
any Court by exercising its discretionary authority at any stage of enquiry,
trial or other proceeding can summon any person as a witness or examine
any person in attendance though not summoned as a witness or recall or
reexamine any person in attendance though not summoned as a witness or
recall and re-examine any person already examined who are expected to be
able to throw light upon the matter in dispute; because if judgments happen
to be rendered on inchoate,, inconclusive and speculative presentation of
facts, the ends of justice would be defeated."
8. Hon'ble Apex Court further observed as under :-
"18. The next important question is whether Section 540 gives the court
carteblanche drawing no underlying principle in the exercise of the
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extraordinary power and whether the said Section is unguided, uncontrolled
and uncanalised. Though Section 540 (Section 311 of the new Code) is, in
the widest possible terms and calls for no limitation, either with regard to
the stage at which the powers of the court should be exercised, or with
regard to the manner in which they should be exercised, that power is
circumscribed by the principle that underlines Section540, namely,
evidence to be obtained should appear to the court essential to a just
decision of the case by getting at the truth by all lawful means. Therefore, it
should be borne in mind that the aid of the section should be invoked only
with the object of discovering relevant facts or obtaining proper proof of
such facts for a just decision of the case and it must be used judicially and
not capriciously or arbitrarily because any improper or capricious exercise
of the power may lead to undesirable results. Further it is incumbent that
due care should be taken by the court while exercising the power under this
section and it should not be used for filling up the lacuna left by the
prosecution or by the defence or to the disadvantage of the accused or the
cause serious prejudice to the defence of the accused or to give an unfair
advantage to the rival side and further the additional evidence should not be
received as a disguise for a retrial or to change the nature of the case against
either of the parties."
9. The Apex Court summed up its conclusions in the following words:
"27. The principle of law that 'emerges from the views expressed by this court in
the above decisions is that the Criminal Court has ample power to summon
any person as a witness or recall and re-examine 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."
10. A three Judges Bench of Hon'ble Supreme Court also examined the
aforesaid issue in 2013 (3) RCR (Criminal) 726 Rajaram Prasad Yadav vs.
State of Bihar and another. In the said case, the trial Court disallowed the
application filed by State under Section 311 of the Code of Criminal
Procedure (Cr.P.C.), to re-examine PW-9, the informant. The High Court
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reversed the order and allowed the said application. While discussing a
plethora of judgements, the broad principles with regard to invoking section
311 Cr.PC were culled out as under:
"23. From a conspectus consideration of the above decisions, while dealing with
an application under Section 311 Criminal Procedure Code read along with
Section 138 of the Evidence Act, we feel the following principles will have
to be borne in mind by the Courts:
a) 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?
b) The exercise of the widest discretionary power under Section 311
Criminal Procedure Code 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.
c) 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.
d) The exercise of power under Section 311 Criminal Procedure Code
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.
e) 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.
f) The wide discretionary power should be exercised judiciously and not
arbitrarily.
g) 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.
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h) The object of Section 311 Criminal Procedure Code simultaneously
imposes a duty on the Court to determine the truth and to render a just
decision.
i) 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.
j) 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.
k) 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.
l) The additional evidence must not be received as a disguise or to change
the nature of the case against any of the party.
m) 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.
n) The power under Section 311 Criminal Procedure Code 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."
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11. The Hon'ble Apex Court, while applying the said principles, came to a
conclusion that the order of the trial Court impugned before the High Court
did not call for any interference restored the order of the trial Court which
had dismissed the application under Section 311 Cr.P.C.
12. Hon'ble the Supreme Court in AG vs. Shiv Kumar Yadav and Another, 2015
AIR (SC) 3501, where the High Court in revision petition had accepted an
application under Section 311 Cr.P.C., 1973 and had ordered for recall of the
witness, set aside the order of the High Court while observing that no
finding could be recorded that the counsel appointed by the accused earlier
was incompetent and that mere change of counsel cannot be a ground to
recall a witness especially when the counsel had been given due opportunity
of cross-examination.
13. It is evident that the broad principles culled out by three Judges Bench of
Hon'ble Supreme Court Rajaram Prasad Yadav's case, clearly define the
scope of section 311 Cr.PC. and are consistently being followed.
14. Coming to the facts of the present case, a perusal of the application filed
under Section 311 Cr.P.C. (Annexure P-2) would show that the sole ground
set forth for recalling the complainant is on account of change of counsel, as
the previous counsel is stated not to have asked the relevant questions.
Interestingly, the petitioner/accused has not chosen to place on record a copy
of the statement of the complainant from which it could be said that the
cross-examination is indeed sketchy and does not pertain to relevant issues.
Rather, a perusal of the impugned order dated 21.11.2023 (Annexure P-4)
passed by the learned Judicial Magistrate Ist Class reveals that the
complainant tendered his affidavit in evidence on 02.03.2022 and thereafter
the petitioner/accused availed of 3 opportunities to cross-examine the
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complainant and after his cross-examination, statement of the accused in
terms of Section 313 Cr.P.C. was also recorded, wherein the accused is not
stated to have specifically denied the signatures on the cheque in question
and the issuance of the cheque in question.
15. Under the aforestated circumstances, the sole ground for recalling the
complainant for his further cross-examination as set out i.e. on account of
change of counsel, would not furnish sufficient cause to warrant recalling of
the complainant particularly when the previous counsel had duly cross-
examined the complainant. As such, weighing the facts of the present case
against the ratio of the judgments referred to above, this Court does not find
any infirmity in the impugned order dated 21.11.2023 (Annexure P-4) and
the same is upheld. Finding no merit in the petition, the same is hereby
dismissed.
29.01.2024 (GURVINDER SINGH GILL)
Vimal JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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