Ashwani Kumar Dutt vs Roshan Lal Sharma through his Special Power of Attorney holder Shri Sanjeev Kumar and Sanjeev Kumar

Kuldip Singh, Judge

This judgment shall dispose of Cr.MMO Nos. 146, 147 and 148 of 2012 as common questions of facts and law are involved in these petitions. The petitioner has filed the petitions assailing order dated 21.6.2012 passed by learned Judicial Magistrate 1st Class, Karsog in Criminal Miscellaneous Application No. 136-IV/2012, Criminal Miscellaneous Application No. 137-IV/2012 and Criminal Miscellaneous Application No. 138-IV/2012.

It has been stated that respondents had filed three complaints u/s 138 of the Negotiable Instruments Act, 1881 (for short ''Act'') against the petitioner which are pending. The evidence of the respondents had not completed but in the meantime the respondents moved an application u/s 311 Cr.P.C. for examining Mohan Lal Sharma, Moti Ram and Ram Dass as witnesses in each case, but no reason has been assigned in the applications for moving the applications at the belated stage.

The respondent while appearing in the witness box has deposed that the transactions between the complainant No. 1 and accused had taken place in presence of complainant No. 2, who is the only son of complainant No. 1. The statements of aforesaid witnesses will not help in adjudicating the real dispute between the parties. The respondents have filed the applications without disclosing why these names were not disclosed when the complaints were filed. The learned trial Court has not properly appreciated Section 311 Cr.P.C.

Heard. The respondents have filed three complaints against petitioner u/s 138 of the Act. The evidence of the complainant is still in progress. It has not been denied that before the conclusion of the evidence in each complaint an application u/s 311 Cr.P.C. was moved for examining Mohan Lal Sharma, Moti Ram and Ram Dass. The respondents case is that earlier three cheques were issued in presence of Mohan Lal Sharma, Moti Ram and Ram Dass. Those cheques were replaced by the cheques on the basis of which the complaints have been filed. The respondents want to bring on record the photocopies of the previous cheques and they also want to examine the witnesses namely Mohan Lal Sharma, Moti Ram and Ram Dass.

The applications were contested by the petitioner but the same were allowed by the learned trial Court. The Section 311 of the Code provides any Court may, at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The Section 311 of the Code gives very wide powers to the Court to examine any person as witness who has earlier not been examined as witness. In the present case, it has been contended on behalf of the respondents that the earlier three cheques were issued in presence of Mohan Lal Sharma, Moti Ram and Ram Dass and thereafter those cheques were replaced by the cheques on the basis of which the complaints have been filed. In these circumstances, Mohan Lal Sharma, Moti Ram and Ram Dass are necessary witnesses in support of the prosecution. The contention of the learned counsel for the petitioner that the respondents have already made some admission regarding the presence of the person in whose presence the cheques were issued will make no difference as that part of the statement will remain on the record even after recording the statements of Mohan Lal Sharma, Moti Ram and Ram Dass. The learned Magistrate has exercised discretion in allowing the application. There is no error of jurisdiction. The evidence of the complainant in the three cases has not yet been concluded, the petitioner will get full opportunity to cross-examine the witnesses now to be examined by the respondents. There is no merit in the petitions. Accordingly, all the petitions are dismissed and all the pending applications are also disposed of in view of disposal of the main petitions. Interim order dated 21.9.2012 passed in all the petitions, shall stand vacated.