Rajkumar vs State Of Rajasthan ...
2023 Latest Caselaw 3235 Raj

[2023/RJJD/010899]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5474/2021

Rajkumar S/o Keshavdutt Sharma, Aged About 45 Years, R/o House No. 143, Civil Lines, Near Vision Colony, P.s. Sadar Chittorgarh, District Chittorgarh.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Nirmal Singh S/o Balveer Singh Rathore, Aged About 37 Years, R/o House No. 64, Behind Senti Senior Secondary School, Senti, P.s. Sadar Chittorgarh, District Chittorgarh.

----Respondents

For Petitioner(s) : Mr. R.S. Choudhary and Mr. J.K. Suthar For Respondent(s) : Mr. Vikram Sharma, PP Mr. S.S. Shaktawat

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

19/04/2023

The present criminal misc. Petition under Section 482 of

Code of Criminal Procedure has been filed by the petitioner

Rajkumar against the order dated 06.09.2021 passed by learned

Additional Sessions Judge, No.3, Chittorgarh by which the revision

petition filed by the petitioner has been dismissed and upheld the

order dated 25.02.2020 passed by Additional Judicial Magistrate,

Chittorgarh rejecting the application filed by the accused petitioner

under Section 311 Cr.P.C.for re-examination.

Brief facts of the case are that the respondent complainant

filed a complaint under Section 138 N.I. Act stating therein that

the petitioner had taken a loan of Rs. 11,12,000/- for his domestic

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expenses and executed an agreement dated 11.08.2015. It was

further stated that the accused handed over three post dated

cheques in the sum of Rs. 4,00,000/-, Rs. 4,12,000/- and Rs.

4,00,000/-. However, when the said cheques were presented in

the Bank, the same were dishonoured. Thereafter, the

complainant sent a legal notice and later on a complaint was

registered under Section 138 of the N.I. Act.

After registration of the complaint, the complainant was

examined as AW/1 and counsel for the petitioner cross-examined

the complainant. The petitioner was examined before the trial

court as DW/1 and the counsel for the complainant cross-

examined the petitioner. Thereafter, the petitioner moved an

application before the trial court with the prayer that since his

previous counsel had not cross-examined the complainant on the

issue of agreement Ex.P/15 and he has now changed the counsel,

therefore, the complainant may be recalled for cross-examination.

The learned trial court after considering the entire aspect of

the matter and reply filed on behalf of the respondent

complainant, rejected the application filed by the petitioner vide

order dated 25.02.2020. The revision petition filed by the

petitioner also came to be dismissed vide order dated 06.09.2021

Counsel for the petitioner submits that the complainant had

produced the agreement Ex.15 to prove his case, however, during

the course of cross-examination, the counsel did not question

about the veracity of said agreement, therefore, in the interest of

justice, the trial court ought to have permitted his counsel for re-

examination of the complainant. Learned counsel submits that the

intention of the legislation of Section 311 Cr.P.C. is that the best

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available evidence must be brought before the court to prove a

fact or point in issue and therefore, looking to the fact that it was

an inadvertent mistake on the part of counsel for the petitioner,

the trial court ought to have recalled the witness PW/1 for just

decision of the case. Learned counsel for the petitioner placed

reliance on the judgments of this Court in the case of Piyush Dosi

Vs. State of Raj reported in 1017(3) Cr.L.R. (Raj. 1603, High Court

of Madhya Pradesh in the case of Shankar lal Vs. State of M.P )

Misc. Criminal Case No. 3851/2023 dated 03.02.2023, Kerala

High Court in the case of Thachanalil Shyju Vs. State of Kerala

(Crl. MC No. 5515/2019) dated 23.02.2023 and Manu Dev Vs.

State of Kerala (Crl. MC No. 1034/2023) dt 13.02.2023.

Per contra, counsel for the respondent opposed the prayer

and submitted that when the complainant was examined, a

thorough cross-examination was conducted by counsel for the

petitioner and now at this belated stage, the accused petitioner

has filed application under Section 311 Cr.P.C. The accused has

filed the application only to delay the proceedings and the trial

court and rightly rejected the application filed by the accused by

assigning any cogent reasons.

I have perused the impugned order and heard rival

contention of the parties.

It is not disputed that evidence of complainant PW/1 Nirmal

Singh and defence witness DW/1 Rajkumar has been recorded and

cross-examination has also been done by the accused and

complainant respectively. The complainant was examined as PW/1

on 16.09.2016 and after completion of cross-examination, the

petitioner filed an application under Section 311 Cr.P.C. for

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summoning the complainant again for questioning him on the

issue of agreement. The only ground taken by the petitioner is

that due to inadvertence, his counsel did not ask questions

regarding veracity of the agreement Ex.P/15 whereas, the said

agreement was produced in evidence right from the inception

alongwith the affidavit and same was well within the knowledge of

the petitioner accused. In the application, the accused petitioner

has nowhere mentioned as to how the recalling of witness PW/1

Nirmal Kumar is essential for just decision of the case.

Hon'ble Supreme Court in the case of Rajaram Prasad Yadav

vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid

down following principles while dealing with application under

Section 311 Cr.P.C:-

"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. 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 Cr.P.C. 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

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power of the Court to summon and examine or recall and re-examine any such person.

d) 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.

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.

h) The object of Section 311 Cr.P.C. 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.

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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 Cr.P.C. 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."

In the circumstances of the case, in view of the observations

made by Hon'ble Supreme Court at points No. (e), (f), (i), and (j),

it is clear that the trial court has not committed an error in

exercising the jurisdiction under Section 311 Cr.P.C and as re-

examination is not essential for just decision of the case. So far as

the judgments cited by counsel for the petitioner are concerned, it

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cannot be applied as a uniform standard to each and every case,

but each case will have to be decided on its own facts. Hence, the

criminal misc. petition is hereby dismissed. Stay petition also

stands dismissed. The trial court is directed to expedite the trial.

(MANOJ KUMAR GARG),J 162-BJSH/-

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