Vijay Kant Sharma Vs Shyam Lal Chauhan

Justice Sanjay Karol, Judge

1. Petitioner has assailed the order dated 3.12.2011 passed by Judicial Magistrate 1st Class, Rajgarh, in Cr. Misc. Application No. 108/4 of 2011, filed in case No. 31/3 of 2010/2005, titled as Shyam Lal versus Vijay Kumar. In the year 2005, respondent Shri Shyam Lal Chauhan (hereinafter referred to as the complainant) filed a complaint u/s 138 of the Negotiable Instruments Act, 1881 (for short ''Act'') against the present petitioner Shri Vijay Kant Sharma (referred to as the petitioner). Notice in the complaint was issued and complainant''s evidence recorded. It is a matter of record that entire evidence of the complainant stands recorded by the Court on 18.11.2011.

2. Statement of complainant Shri Shyam Lal Chauhan (CW-2) was recorded on 27.9.2011. He was also cross-examined by the Learned Counsel for the petitioner on the very same day. In his cross-examination, complainant deposed that payments made to the petitioner stood reflected by him in his books of accounts as also Income Tax Returns so filed by him for the relevant year.

3. After recording of complete evidence of the complainant''s witnesses on 18.11.2011, petitioner filed an application u/s 311 of the Code of Criminal Procedure, 1973 (for short ''Code''), read with Section 165 of the Indian Evidence Act, 1872, praying that he be allowed to re-examine/re-cross-examine the complainant, who may also be directed to produce the following documents:

(i) counter foil of the cheques by which the complainant has stated to pay the amount out of the amount in question, to the accused,

(ii) statement of accounts disclosing the payment of the aforesaid cheques to the applicant/accused, (iii) acknowledgments of the income tax return and all supporting documents attached therewith disclosing outstanding amount in question towards the applicant/ accused, for the relevant years and (iv) all the relevant record showing the complainant having some institute at place Dehradoon, Uttra Khand, in the interest of justice.

4. Filing of the application was justified on the ground that factum of disclosure of the transaction in question, in the books of accounts/Income Tax Return and possession of the record thereof with the complainant was not so disclosed in the complaint. In fact, it was categorically pleaded that "all the aforementioned documents are within the possession of the complainant, who didn''t brought the same at the time of his evidence, because there is no such record in existence as discussed by the complainant in the Court and by saying so he surprised the applicant/accused, as he has not mentioned the same in his complaint".

5. Complainant opposed the application by filing reply, clearly stating that all essential documents, i.e. cheques, memo, affidavit and relevant letters etc., stood filed alongwith the complaint and no fresh/additional document is either required or sought to be filed by him.

6. In terms of the impugned order, this application stands rejected.

7. I have gone through the file and the record so placed by the parties before this Court.

8. In the complaint itself, complainant has himself disclosed that petitioner had borrowed a sum of Rs. 4,50,000/- in relation to which a cheque as security for repayment of the amount, was issued to him. The said cheque bearing No. 074550 was dishonored on account of insufficient funds in the account of the petitioner. Complainant issued a notice and also filed complaint in the Court of competent jurisdiction. Thereafter, the matter was compromised and complaint was withdrawn. At that time, petitioner further borrowed an amount of Rs. 1,50,000/- and the entire amount of Rs. 6,00,000/- ( Rs. 4,50,000/- + Rs. 1,50,000/-) was agreed to be refunded to the complainant on or before 31.12.2004. Petitioner also executed an affidavit before the Executive Magistrate clearly admitting his liability for a sum of Rs. 6,00,000/- and having issued a fresh cheque bearing No. 0095583, dated 31.12.2004 for an amount of Rs. 6,00,000/- However, when the same was deposited by the complainant, it was returned uncleared and consequently instant complaint was filed against the petitioner. Now, complainant in his testimony has clearly proved these facts. He was cross-examined by the Learned Counsel for the petitioner the very say day. Record reveals that after recording of the statement of the complainant (CW-2), undisputedly, matter was adjourned, when also petitioner did not raise any objection with regard to non-production of the documents, as are now sought to be summoned from the complainant. Not only that, matter was adjourned and statements of other complainant witnesses were also recorded and even prior thereto, petitioner did not raise any objection or file any appropriate application. 10. I am of the considered view that petitioner is now trying to delay the proceedings initiated in the year 2005. This tactics of procrastination cannot be permitted as it is defeating the object and the purpose of enactment of Section 138 of the Act.

10. It is not a case where adequate opportunity of cross-examining the witness was not so afforded to the petitioner. He was duly represented by a counsel who cross-examined the witnesses at length and never raised any objection at the time of recording of the complainant''s statement or immediately thereafter.

11. That apart, I find that in view of the petitioner''s alleged admission, the documents in question are neither necessary nor relevant. The question as to whether the present petitioner had admitted his liability before the Executive Magistrate is however a matter which has to be adjudicated upon by the trial Court and it may not be construed that this Court has returned any findings in the affirmative, in favour of either of the parties.

12. In 2009(1) Shim. LC 72, Ranjeet Singh versus Shyam Lal, it has been held that a witness can be recalled for re-examination only if it is essential for the just decision of the case. In similar circumstances, the Court rejected the contention of the accused for summoning the witness for re-examination, on the ground that it was not spelt out as to what was the relevancy of the document to the complaint.

13. That there is a power with the Court to recall a witness at any stage of the trial cannot be disputed. It is a settled proposition of law. It has been so held by the apex Court Mohanlal Shamji Soni Vs. Union of India and another, Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, , P. Chhaganlal Daga Vs. M. Sanjay Shaw, , Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, U.T. of Dadra and Haveli and Another Vs. Fatehsinh Mohansinh Chauhan, , U.T. of Dadra & Nagar Haveli and another versus Fatehsinh Mohansinh Chauhan; and (2010) 6 SCC, Sidhartha Vashisht alias Manu Sharma versus State (NCT of Delhi).

14. However, in Mohanlal Shamji Soni (supra), the apex Court has held that the power, so stipulated u/s 311 of the Code, has to be exercised with caution. The discretionary power should be invoked as the exigencies of justice require and exercised judiciously with circumspection and consistently with the provisions of the Code.

15. As already mentioned, the factum of execution of the affidavit and the issuance of the cheque towards an outstanding liability is to be adjudicated by the trial Court. In view of the statutory presumption, it is not incumbent upon the complainant to disclose as to whether he had reflected the entries in the books of accounts or not. The presumption, in my considered view, can be easily rebutted by the petitioner by leading his evidence.

16. Mr. Karan Singh Kanwar, Learned Counsel for the petitioner has invited my attention to the decision rendered by the apex Court i Lalit Kumar Sharma and Another Vs. State of U.P. and Another, r, to contend that the complaint itself is not maintainable, inasmuch as the cheque in question was not towards a debt as is so stipulated under the provisions of Section 138 of the Act. Even though I find that the decision is clearly distinguishable on facts, but however at this stage, considering that this petition is not for quashing of the complaint, I refrain from adjudicating upon this aspect of the matter.

17. Learned Counsel has also referred to and relied upon the decision rendered by the apex Court in T. Nagappa Vs. Y.R. Muralidhar, T. Nagappa versus Y.R. Muralidhar to contend that accused has a right to defend himself as a part of his human as also fundamental right so enshrined under Article 21 of the Constitution of India. Accused has a right to fair trial and to properly defend himself. Now, there cannot be any dispute with regard to this proposition of law. However, this does not advance the case of the petitioner at all. In the said decision, the Court was dealing with a case where the accused was disputing the writing on the cheque, which allegedly was issued by him, on the basis of which criminal complaint u/s 138 of the Act was filed. Request of the accused to send the matter to an expert was rejected by the Courts below. It is in this background that the Court reiterated the aforesaid proposition of law.

18. Significantly, the aforesaid decision stood clarified by the apex Court itself in G. Someshwar Rao Vs. Samineni Nageshwar Rao and Another, wherein it was held that the right of a fair trial cannot be used as an instrument by the accused to delay the proceedings. In view of the aforesaid discussion, I am of the view that the petition merits rejection. Ordered accordingly. Trial Court is directed to complete the entire trial expeditiously.

Pending application, if any, also stands disposed of.