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HARINDER GUN HOUSE v. MOHINDER KAUR - CRM-M-24132-2005 [2006] RD-P&H 192 (19 January 2006)



Harinder Gun House



Mohinder Kaur


Present: Mr.M.S. Rakkar, Senior Advocate with Mr.P.S. Baath, Advocate for the petitioner Mr.G.S. Kaura, Advocate for the respondent JUDGMENT :-

The present petition is directed against the order dated 27.4.2005 passed by Judicial Magistrate Ist Class, Patiala, whereby the petitioner's application seeking permission to recall the complainant for cross- examination with regard to certain material facts, has been rejected.

The facts in brief, are that respondent-Mohinder Kaur filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the petitioner alleging that petitioner had issued a cheque bearing no.509299 dated 7.6.2003 of Oriental Bank of Commerce, Main Bazar, Gurbax Colony, Patiala for a sum of Rs.2,00,000/- in favour of the complainant. The complainant deposited the above cheque in her account in the State Bank of Patiala, Model Town, Patiala for its encashment. When the said cheque was presented to the Oriental Bank of Commerce, it was returned vide memo dated 13.6.1003 of State Bank of India with the endorsement "account of the accused (petitioner) has already been closed". The complainant issued a legal notice dated 27.6.2003 through her counsel demanding the amount of cheque from the accused. The notice was duly served on the petitioner. However, the petitioner failed to satisfy the claim of the complainant and, therefore, she filed complaint in the Court of Judicial Magistrate Ist Class, Patiala. The accused was summoned by the Court concerned.

During trial, the complainant closed her evidence on 15.3.2005 and the case was adjourned to 23.4.2005 for effecting compromise between the parties. On 23.4.2005, some other counsel, namely, Shri S.S. Kler appeared on behalf of the petitioner. Since compromise was not effected between the parties, therefore, the case was adjourned to 27.4.2005 for further proceedings. On 27.4.2005, petitioner filed the application seeking to recall the complainant, which was dismissed by the trial court, mainly on the ground that negligence or fault of previous counsel could not be a ground for recalling the witness. The petitioner (accused) is adopting delaying tactics by filing the application. The learned trial Court further mentioned that the case is already at the stage of recording statement of the accused under Section 313 Cr.P.C. and documents, if any, which need to be put to the complainant, can be proved by the accused while leading his defence evidence.

I have heard learned counsel for the parties and perused the material on record.

Learned counsel for the petitioner submitted that the Court has ample power to recall any witness at any stage of the trial, if such evidence appears to be essential for the just decision of the case. He further argued that the petitioner had no other remedy but to file the petition under Section 482 of the Code of Criminal Procedure.

On the other hand, learned counsel for the respondent argued that petitioner is merely adopting delaying tactics by raking up frivolous contentions for recall of the complainant and to confront the complainant with the alleged receipt dated 6.7.2003. It is argued that if such a receipt was available with the petitioner, he would have certainly asked his counsel to confront the respondent with the said receipt. It is pointed out that even in the application for recalling, the petitioner has stated that his counsel did not put the material evidence to the complainant in spite of his repeated requests. He also did not produce the material documents with regard to payment of Rs.2,00,000/- given in cash to the complainant on 6.7.2003. By his own pleadings, it is evident that the petitioner was very well aware of the alleged receipt having been not put to the complainant at the time of recording of her statement. In case, his counsel had not put the said document to the complainant, the petitioner himself could request the trial court to confront the complainant with the said document or the petitioner could at that stage, request the trial Court not to proceed with the trial as his counsel is not acting fairly. Rather, it is evident from the order of the trial Court that on 15.3.2005 the case was adjourned for effecting compromise between the parties.

No doubt the Court has wide powers under Section 311 of the Code of Criminal Procedure to summon any person as a witness or examine any person or recall or re-examine any person in attendance already examined if the Court is of the opinion that the evidence of that witness is essential for the just decision of the case. There is no limitation on the powers of the Court irrespective of the stage to which the trial may have reached, for examination of a witness in the interest of justice. However, the Courts are required to exercise their discretion in a judicious way. In the instant case, it is apparent from the zimni orders reproduced in the petition that witnesses of the complainant have been examined and cross-examined on 15.3.2005 by the counsel for the petitioner and the complainant had closed her evidence.

As per petitioner's own pleadings, his counsel did not put the relevant questions and documents to the complainant at the time of her cross- examination in spite of his repeated requests. If that was so, the petitioner could himself put the documents to the complainant or he could have requested the trial Court to adjourn the matter for any other date as he wanted to replace his counsel since he had lost confidence in him. After the complainant's evidence was closed, the case was rather adjourned for effecting compromise between the parties. The object of provisions of Section 311 of the Code of Criminal Procedure is to further and not to hamper the cause of justice. The intention of the petitioner in invoking the provisions of Section 311 of the Code does not appear to be in consonance with the aforesaid object. Even the petitioner has the opportunity of producing and proving any document in his defence, if he is so advised.

Accordingly, the petition has no merits and is dismissed.

January 04, 2006 ( NIRMAL YADAV )



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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