Telangana High Court

Shaik Jaweed vs The State Of A.P. Another on 28 January, 2022

Bench: G.Radha Rani

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

            CRIMINAL PETITION No.10810 of 2013
ORDER:

This petition is filed by the petitioner-accused under Section

482 Cr.P.C. to quash the order dated 03-09-2013 passed in Crl.M.P.

No.579 of 2013 in CC No.453 of 2012 on the file of II Special

Magistrate Hyderabad.

2. The case of the petitioner in brief was that the respondent

No.2 filed a private complaint against him for the offence under

Section 138 of the Negotiable Instruments Act (for short 'NI Act').

The respondent No.2 alleged that in the month of September 2010, the

petitioner requested him for a loan of Rs.2.00 lakhs to meet his urgent

business needs and issued the cheque bearing No.050383 dated

10-03-2012 for Rs.1.00 lakh drawn on ICICI Bank, Hyderabad Main

Branch belonging to SS Electricals in favour of the respondent No.2

for repayment of loan amount and the said cheque was dishonoured

for insufficient funds. Trial was conducted by the II Special

Magistrate Hyderabad. When the case was posted for arguments, the

petitioner-accused filed a petition under Section 254 (2) read with

Section 311 Cr.P.C. for summoning the Branch Manager, ICICI Bank,

Hyderabad main branch, Himayat Nagar, along with all the

documents pertaining to account No.630505026294 of M/s.SS

Electricals to prove that he was not concerned with the alleged cheque

and alleged account. But the same was dismissed by the trial court.

Dr.GRR,J

3. Heard the learned counsel for the petitioner. There is no

representation for the 2nd respondent.

4. The learned counsel for the petitioner submitted that the

account belonged to the father of the petitioner and the cheque was

also issued by the father of the petitioner. The authorized signatory

was only the petitioner's father. To prove that the petitioner was not

the executant of the cheque in question nor the cheque was issued by

him and that there did not exist any legally enforceable debt, the

petitioner filed the above petition, but the trial court erroneously

dismissed the same, the petition ought to have been allowed and all

necessary opportunities to rebut the presumption under Section 138 of

NI Act ought to have been provided to the petitioner. If the petition

was not allowed setting aside the order dated 03-09-2013, the

petitioner would be put to great hardship and irreparable loss and

prayed to allow the petition.

5. Perused the record. The impugned order of the learned II

Special Magistrate, Hyderabad would disclose that during the cross

examination of PW1, it was suggested to him that the

accused/petitioner issued Ex.P2 cheque in blank to one M

Purushottam and though the accused/petitioner discharged his

liability towards Purushottam, the said Purushottam did not return

Ex.P2 cheque. Ex.P8 was the reply notice issued by M.Srinivas,

Advocate on behalf of the accused/petitioner to the counsel for the

complainant in reply to Ex.P4 statutory notice. In para No.5 of

Ex.P8, it was stated that the accused/petitioner approached one Dr.GRR,J

M.Purushottam for a loan of Rs.1.00 lakh and the said Purushottam

gave the said amount after obtaining empty cheques and promissory

notes for security of the amount advanced. The empty cheques

contained the cheque No. 050383 (the subject cheque). By that

averment in Ex.P8, the petitioner admitted that he issued the subject

cheque, as such dismissed the petition.

6. The Hon'ble Apex Court in RajaramYadav v State of

Bihar1, enumerated the following principles to be borne in mind by

the courts while considering petitions under Section 311 Cr.P.C.:

"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 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.

AIR 2013 SC 3081 Dr.GRR,J

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.

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."

7. As the object of Section 311 Cr.P.C. is to consider whether

the examination of the witness is essential to determine the truth and

for rendering a just decision and to afford an opportunity to the

accused in the fairest manner possible and as it would be safe to err in Dr.GRR,J

favour of the accused and the court should bear in mind that no party

in a trial can be foreclosed from correcting errors and court should be

magnanimous in permitting such mistakes to be rectified, though the

defense taken by the accused is inconsistent, the court ought to have

allowed the petition so as to arrive at a just decision of the case.

8. In the result, the petition is allowed quashing the order in

Crl. M.P. No.579 of 2013 in CC No.453 of 2012 dated 03-09-2013

and the trial Court is directed to proceed with the matter by