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Neeraj Goel v. Bharat Bhagat HUF through Karta Bharat B - CRM-55618.m-2004  RD-P&H 3220 (17 May 2006)
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH DATE OF DECISION : 5.9.2005.
1. Crl.Misc.No.55618.M of 2004 Neeraj Goel Vs Bharat Bhagat HUF through Karta Bharat Bhagat
2. Crl.Misc.No.55616.M of 2004 Neeraj Goel vs Desh Bhagat, HUF, through Karta Desh Bhagat
3. Crl.Misc.No.57021.M of 2004 Neeraj Goel vs Desh Bhagat, HUF, through Karta Desh Bhagat *********
QUORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA.
Present : Mr.S.S.Narula, Advocate,
Mr.Kanwaljit Singh, Advocate.
This order shall dispose of Crl.Misc.No.55616.M, 55618.M and 57021.M of 2004, as common questions of law and facts are involved therein.
For the sake of convenience, facts are being extracted from Crl.Misc.No.55618.M of 2004.
By way of the present petition filed, under Sections 482 of the Code Crl.Misc.Nos.55618.M of 2004 ::2::
of Criminal Procedure, the petitioner prays for the quashing of the order dated 29.10.2004, passed by the Additional Sessions Judge, Jalandhar, and the order dated 15.9.2004, passed by the Judicial Magistrate Ist Class, Jalandhar.
During the pendency of proceedings before the Judicial Magistrate Ist Class, initiated upon a complaint, filed by the respondent, under Section 138 of the Negotiable Instruments Act, the petitioner filed an application dated 14.11.2002 (Annexure P-1) praying therein for issuing a direction to the complainant to produce his accounts. The said application remained pending. The complainant stepped into the witness box, and was duly cross-examined by the petitioner on 1.4.2003. The complainant thereafter closed his evidence. During his defence evidence, the petitioner filed an application dated 11.3.2004 praying for recalling the complainant for further cross-examination. The petitioner concluded his evidence in defence but did not press the aforementioned application.
Eventually, reply was filed on 14.9.2004, arguments were heard on that very day, and the application was dismissed on the next day i.e. 15.9.2004. Revision, filed by the petitioner, impugning the aforementioned order, was also dismissed.
Counsel for the petitioner contends that the trial Court should have allowed the application for recalling the complainant as grave prejudice had been caused to the petitioner. The petitioner could not effectively cross-examine the complainant, as the entire accounts were not produced. It is further contended that apart from the present application, an application for directing the respondent Crl.Misc.Nos.55618.M of 2004 ::3::
to produce his accounts, was pending but the trial Court failed to decide the application compelling the petitioner to cross-examine the complainant, without complete accounts. It is further contended that the trial Court heard arguments on the application, on the date the reply was filed, reserved orders and dismissed the application on the next day, thereby denying the petitioner an effective opportunity to address arguments. The revisional Court also failed to exercise its jurisdiction correctly. As serious prejudice has been caused to the petitioner, the impugned orders be set aside and the petitioner be granted an opportunity to summon the complainant for further cross-examination.
Counsel for the respondent, on the other hand, contends that the application for re-calling the complainant, was mala fide and filed with the object of delaying proceedings. The petitioner cross-examined the complainant and, therefore, no case was made out to allow recalling of the complainant. It is further contended that the trial Court considered the matter in detail and arrived at a conclusion that the recalling of the complainant was not necessary. The trial Court also noticed that the petitioner led his defence, without pressing the present application and it was only after arguments had been addressed in the main case that the petitioner pressed into service the present application. It is further contended that the revisional Court rightly dismissed the revision petition.
I have heard learned counsel for the parties and perused the record.
Filing of an application, under Section 311 of the Cr.P.C, does not Crl.Misc.Nos.55618.M of 2004 ::4::
vest an indefeasible right in an applicant to demand recalling of a witness. Such a prayer can only be allowed, in exceptional circumstances, where the applicant is able to establish serious prejudice to his cause. It is for the trial Court to examine the matter and in the exercise of its discretion, accept or reject the application. A discretionary relief can only be interfered by a revisional Court or this Court, in the exercise of its jurisdiction, under Section 482 of the Cr.P.C, if the discretion exercised is perverse, arbitrary or so unreasonable as to warrant interference.
The trial Court examined the matter in detail and in the exercise of its discretion, dismissed the application. It took note of the fact that the petitioner had cross-examined the complainant, led evidence in defence and pressed the application only after arguments had commenced in the main case. The trial Court rightly dismissed the application, as the petitioner failed to establish any prejudice. The discretion, exercised by the trial Court, and as upheld by the revisional Court, was not perverse, arbitrary or so unreasonable as would require interference by this Court, in the exercise of its jurisdiction, under Section 482 of the Cr.P.C.
The contention, raised by counsel for the petitioner, that no effective cross-examination could be directed against the complainant, in absence of accounts, is incorrect. The complainant has been duly cross-examined and in case the petitioner required some additional documents, he should have pressed the application, at the time of cross-examination or prior thereto.
Crl.Misc.Nos.55618.M of 2004 ::5::
Another contention, namely, that arguments were heard on the day the respondent filed his reply, is not a circumstance sufficient to set aside the impugned orders.
In view of what has been stated above, the present petition is dismissed.
( RAJIVE BHALLA )
September 05 , 2005. JUDGE
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