Amarjit Malhotra vs Brijandar Sharma

Ajay Mohan Goel, J

By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner/accused has assailed order dated 29.10.2021, passed by the Court of learned Additional Chief Judicial Magistrate (1), Amb, District Una, H.P., in terms whereof, the right of the accused to lead defence evidence, after the complainant was provided an opportunity to lead additional evidence, has been closed, inter alia, on the ground that despite reasonable opportunities having been granted, the petitioner/accused has failed to adduce evidence. Learned Court below also held that by seeking repeated opportunities for examining defence witnesses and not taking appropriate steps to ensure the presence of the witnesses, the accused intended to delay the disposal of the case, which was already more than 12 years old.

Mr. Kuthiala, learned Senior Counsel, while taking the Court through the impugned order, has argued that a perusal of the order passed demonstrates that Dealing Officer of the Income Tax Department, to whom summons were issued and who was called by the accused as his witness, was duly served, but the summons were sent back as un-executed for want of PAN number of the complainant. He submitted that as the petitioner/accused had performed his part as far as summoning of the witness was concerned, learned Court below erred in closing the defence evidence of the petitioner/accused and the petitioner/accused has been made to suffer for no fault of his.

Opposing the petition, learned Senior Counsel appearing for the respondent/complainant submitted that the summons which were issued to the Dealing Officer of the Income Tax Department were received back un-executed for want of PAN number of the complainant, which demonstrates that the particulars that were provided by the petitioner/accused were incomplete and the intention of petitioner is apparent that it was also a step so as to delay the adjudication of the complaint, which at the time of passing of the order by the learned Trial Court itself was more than a decade old.

In rebuttal, Mr. Kuthiala, learned Senior Counsel for the petitioner/accused submitted that as PAN number of the complainant is not in the knowledge of the petitioner/accused, therefore, the accused rightly was not in a position to furnish the same, as in his cross-examination, in the course of leading additional evidence, even the complainant stated in the Court that he was not aware of the PAN number.

Having heard learned Senior Counsel for the parties and after going through the petition as well as the documents appended therewith and also the record of the case, this Court is of the considered view that the impugned order per se is not sustainable in the eyes of law. De hors the fact as to whether the case is old or that number of opportunities stand granted to a party to lead evidence etc., in case a Court is passing an order with regard to closure of evidence of either of the parties, then the Court has to see on that particular day the act of omission on the part of the party, leading to non-presence of witnesses. A perusal of the impugned order demonstrates that one DW Gopal Krishan was present in the Court on the said date, who was given up by learned defence counsel. Summons issued to DW-2, i.e., Dealing Officer of the Income Tax Department were stated to have been received back un-executed for want of PAN number of the complainant. However, summons issued to DW Suresh Kumar were received back unserved. That being the case, this Court fails to understand as to how in these circumstances, the evidence of the accused could have been closed by the learned Court below. This Court is of the considered view that once the accused had taken steps for summoning the witnesses and summons issued to one of the witness were received back unserved and summons issued to the other witnesses were received back un-executed on account of some reason, then the prudent thing for learned Trial Court would have been to fix another date for recording the statement of said defence witnesses rather than closing the evidence, that too, on account of the reasons which have been mentioned in the impugned order. Yes, if on that date the witnesses were not present before the learned Trial Court on account of some act of omission of the accused, then the learned Trial Court would have been justified in passing the order which has been passed in the present case, but in the absence of same, said order cannot be sustained in law.

Accordingly, without dwelling any further on the matter, this petition is disposed of by setting aside order dated 29.10.2021, passed by the Court of learned Additional Chief Judicial Magistrate (1), Amb, District Una, H.P., in Case No. 162-I-09, titled as Brijandar Sharma Vs. Sh. Amarjit Malhotra, with the following directions:-

A. As agreed, DW Suresh Kumar shall be produced by the petitioner/accused on self responsibility on a date to be fixed by the learned Trial Court and in case the petitioner/accused fails to do so, then no further opportunity in this regard shall be granted.

B. As far as the Dealing Officer of the Income Tax Department is concerned, on the date when the parties shall appear before the learned Trial Court, opportunity shall be granted by the learned Trial Court for summoning of said witness, by calling upon the accused to take necessary steps in this regard. It is made clear that post service of the summons upon the Dealing Officer of the Income Tax Department, he shall appear before the learned Trial Court and depose whatever he has to say. Alongwith the summons which shall be issued to the Dealing Officer of the Income Tax Department, a copy of this order shall also be appended and it shall be mentioned in the summons which shall be issued to the Dealing Officer of the Income Tax Department that in case the Officer fails to appear before the learned Trial Court for the purpose of deposition alongwith the relevant record which may be brought by him, then the same shall be construed as contempt of the present order which is being passed by this Court today and this Court will not hesitate in taking cognizance against the Officer concerned.

C. Despite opportunity, in case no steps are taken by the accused for service of the Officer of the Income Tax Department, then no further opportunity in this regard shall be granted by the learned Trial Court.

D. It is clarified that learned Trial Court may not pass any order closing the evidence of the petitioner/accused in the event of the summons issued to the Dealing Officer of the Income Tax Department not being served, however, this indulgence shall be shown by the Court only if appropriate steps stand taken by the petitioner/accused for summoning of the witness.

Parties through learned counsel are directed to appear before the learned Trial Court on 12th July, 2022, on which date, learned Trial Court shall fix a date for recording the evidence of the accused. It is made clear that the witness who has to be produced by the accused on self responsibility shall also be produced on the date which shall be so fixed by the Court for recording the evidence of the accused. It is further made clear that taking into consideration the fact that the complaint itself was filed more than 12 years back, all endeavour shall be made by the learned Trial Court to dispose of the petition before 30th September, 2022 and the date for recording the evidence of the accused shall be fixed taking into consideration the directions issued in this order.

An amount of Rs.10,000/- deposited before the Registry of this Court by the petitioner/accused in terms of order dated 30.11.2021, is ordered to be released in favour of the respondent in his bank account as cost, details whereof shall be supplied by the respondent to the Registry of this Court. Miscellaneous applications, if any, also stand disposed of.