Punjab-Haryana High Court
Raju Kumar Kashyap vs Harpreet Kaur on 18 March, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:038665
2024:PHHC:038665
CRM-M-34026-2022 -1-
(208) IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34026-2022
Date of decision : 18.03.2024
RAJU KUMAR KASHYAP
... Petitioner
Versus
HARPREET KAUR
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Atul Goyal, Advocate
for the petitioner.
Mr. A.S. Jawandha, Advocate
for the respondent.
JASJIT SINGH BEDI, J. (ORAL)
The prayer in the present petition under Section 482 Cr.P.C.
is for quashing of the order dated 12.05.2022 (Annexure P-6) whereby
the application under Section 311 Cr.P.C. has been declined in complaint
titled as 'Raju Kumar Kashyap Versus Harpreet Kaur' under Section 138
of the NI Act, 1881 bearing No.COMA-7140-2014 dated 10.10.2014
pending in the Court of JMIC, Ludhiana.
2. The brief facts of the case are that the respondent/accused
was the owner in possession of a property situated at Ludhiana executed
an agreement to sell dated 03.04.2014 for the said property for a total
consideration of Rs.20 lakhs in favour of the petitioner/complainant. A
sum of Rs.10 lakhs was paid at the time of the agreement and Rs.2 lakhs
thereafter. The copy of the agreement to sell dated 03.04.2014 is attached
as Annexure P-1 to the petition.
3. As the respondent/accused could not execute the sale deed,
a compromise took place and the respondent/accused agreed to return
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the amount of Rs.12 lakhs paid to her by the petitioner/complainant. In
furtherance of the same, a cheque bearing No.000002 dated 22.08.2014
amounting to Rs.12 lakhs was issued to the petitioner/complainant which
on presentation came to be dishonoured.
4. A complaint was filed by the petitioner/complainant on
30.09.2014/10.10.2014 under Section 138 NI Act. A copy of the
complaint is attached as Annexure P-2 to the petition.
5. The petitioner/complainant was examined as CW-1 and also
cross-examined. The copy of the evidence is attached as Annexure P-3 to
the petition.
6. Based on the aforementioned complaint, the
respondent/accused came to be summoned to face Trial vide order dated
10.10.2014.
7. During the course of the proceedings, an application under
Section 311 Cr.P.C. was moved by the petitioner/complainant to bring on
record the agreement to sell dated 03.04.2014 (Annexure P-1) and sale
deed bearing Vasika No.10560 dated 03.02.2014 in favour of the
respondent/accused by way of additional evidence under Section 311
Cr.P.C. The copy of the said application dated 17.03.2020 is attached as
Annexure P-4 to the petition. A reply was filed to the same dated
30.07.2021. A copy of the said reply is attached as Annexure P-5 to the
petition.
8. Vide order dated 12.05.2022, the Trial Court proceeded to
dismiss the application of the petitioner/complainant on the ground that
it had been moved at a belated stage to fill up the lacuna. The copy of the
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said order dated 12.05.2022 impugned in the present petition is attached
as Annexure P-6.
9. The learned counsel for the petitioner contends that during
the course of recording of the evidence of the petitioner/complainant, the
agreement to sell dated 03.04.2014 had been clearly adverted to and the
respondent/accused had even cross-examined the petitioner/complainant
on the said agreement to sell. However, inadvertently, on account of an
oversight, the said agreement could not be placed on record at that time.
Further, the sale deed in favour of the respondent/accused dated
03.02.2014 on the basis of which the agreement to sale dated 03.04.2014
was entered into was also required to be brought on record so as to
establish the offence in question. The said sale deed was even otherwise,
a matter of record. The bringing on record none of these documents
would not cause any prejudice to the rights of the respondent/accused
who would cross-examine the witnesses as to the documents sought to
be brought on record. Delay in moving an application under Section 311
Cr.P.C. or a lacuna being sought to be filled up were of little relevance in
view of the essential nature of the evidence sought to be brought on
record. Therefore, the impugned order was liable to be quashed and the
said documents were required to be brought on record by way of the
application under Section 311 Cr.P.C. Reliance is placed on the judgment
of the Hon'ble Supreme Court in the case of V.N. Patil Versus K.
Niranjan Kumar & others, Criminal Appeal No(s).267 of 2021,
decided on 04.03.2021.
10. On the other hand, the learned counsel for the respondent
while referring to the reply dated 28.02.2023 contends that the
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agreement to sell was well within the knowledge of the
petitioner/complainant but had not been brought on record and at this
belated stage, he could not be permitted to fill up the lacuna on the basis
of forged and documents which had never been executed between the
petitioner/complainant and the respondent/accused. In fact, the
petitioner/complainant had concealed the factum of receiving stolen
documents i.e. the sale deed from the husband of the
respondent/accused. He, therefore, contends that the present petition was
liable to be dismissed.
11. I have heard the learned counsel for the parties.
12. Before proceeding further in the matter, it would be apposite
to refer to the provisions of Section 311 Cr.P.C.
Section 311 Cr.P.C, reads ad under:-
""311. Power to summon material witness, or examine
person present. Any Court may, at any stage of any
inquiry, trial or other proceeding 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 it to be essential to the just decision of the
case.""
13. The Hon'ble Supreme Court in the case of V.N. Patil Versus
K. Niranjan Kumar & others, Criminal Appeal No(s).267 of 2021,
decided on 04.03.2021, held as under:-
" 15. The object underlying Section 311 CrPC is that
there may not be failure of justice on account of mistake
of either party in bringing the valuable evidence on
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record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative
factor is whether it is essential to the just decision of the
case. The significant expression that occurs is "at any
stage of any inquiry or trial or other proceeding under
this Code". It is, however, to be borne in mind that the
discretionary power conferred under Section 311 CrPC
has to be exercised judiciously, as it is always said
"wider the power, greater is the necessity of caution
while exercise of judicious discretion."
[emphasis supplied]
14. Coming back to the facts of the instant case, it is apparent
that as per the case of the petitioner/complainant, a cheque for an amount
of Rs.12 lakhs had been issued by the respondent/accused as the
agreement to sell dated 03.04.2014 (Annexure P-1) could not be
executed due to the inability of the respondent/accused. Therefore, once
the said agreement was the very basis of the issuance of the cheque, its
subsequent dishonouring and consequential complaint and summoning
order, it was certainly essential to be brought on record for the just
adjudication of the case. As regards the sale deed bearing Vasika
No.10560 dated 03.02.2014, it may be pertinent to mention here that it is
the said sale deed by which the accused/respondent came to be the
owner of the property pursuant to which the agreement to sell dated
03.04.2014 (Annexure P-1) came to be executed by the said
accused/respondent in favour of the petitioner/complainant. Therefore,
clearly, it is a document which is a matter of record. It is probably on
account of an oversight that the said document also was not brought on
record at the relevant time. Even otherwise, even if it is taken to be
correct that the application under Section 311 Cr.P.C. had been moved at
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a belated stage to fill up a lacuna, the said issues would remain
subservient to the larger issue of the essentiality of the evidence sought
to be brought on record by way of the application under Section 311
Cr.P.C. In the opinion of this Court, the agreement to sell dated
03.04.2014 (Annexure P-1) and the sale deed bearing Vasika No.10560
dated 03.02.2014 are certainly required to be brought on record for the
just adjudication of the present case.
15. In view of the above, this Court finds considerable merit in
the present petition and therefore, the impugned order dated 12.05.2022
(Annexure P-6) passed by the Judicial Magistrate, 1st Class, Ludhiana
stands quashed. The petitioner/complainant is permitted to tender and
exhibit copies of the agreement to sell dated 03.04.2014 (Annexure P-1)
and the sale deed bearing Vasika No.10560 dated 03.02.2014 by way of
additional evidence in terms of the application dated 17.03.2020
(Annexure P-4).
16. Pursuant to the exhibiting of the documents in question, the
Trial Court is directed to conclude the Trial not later than 03 months
thereafter.
(JASJIT SINGH BEDI)
JUDGE
18.03.2024
JITESH
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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