Harbans Lal vs Rajiv Kumar

Petitioner invokes the inherent jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) for quashing the order dated 17.07.2018 passed by the learned Special Excise Mobile Magistrate, Jammu in file no.174/Complaint under Section 138 Cr.P.C. titled "Harbans Lal Vs. Rajiv Kumar and allowing the application of the petitioner for summoning Branch Manager of J&K Bank, Jalandhar as well as for re-summoning the Branch Manager Punjab National Bank, Miran Sahib, Jammu.

The factual matrix of the case are that the respondent, a relative of the petitioner/complainant, borrowed an amount of Rs.6,00,000/-( rupees six lacs) for his domestic/personal purposes from the petitioner/complainant. It was also assured to petitioner/complainant by the respondent that the said amount would be returned by February 2015. That respondent/accused failed to return the said amount by February 2015 whereupon the petitioner after conforming to mandate of the Negotiable Instruments Act, firstly issued mandatory notice and thereafter filed a complaint which is pending before the learned Special Excise Mobile Magistrate, Jammu under Section 138 Cr P C under the title "Harbans Lal vs. Rajiv Kumar. It is stated that the petitioner/complainant is still leading his evidence and his right to lead evidence has not been closed yet. It is further stated that the respondent has admitted service of notice upon him and the petitioner also stands examined. Moreover, one other witness namely, Kuldeep Kumar Branch Manager, Punjab National Bank, Miran Sahib, Jammu stands examined on 04.05.2017 in addition to petitioner/complainant. In the list of witnesses in the complaint, the petitioner/complainant had mentioned 'concerned bank officials' at serial no.3 of the said list and by this the petitioner/complainant meant to include all the concerned bank officials who had the record of the presentation and dishonor of the cheque in question. It is stated that, however, by sheer oversight, when the petitioner/complainant was to deposit the diet expenses of the witnesses, he missed to mention the name of the Branch Manager, Jammu and Kashmir Bank Ltd., Jalandhar who issued the "memo of dishonor".

Learned counsel for the petitioner stated that later on, petitioner/complainant moved an application u/s 540 Cr.P.C. for summoning the Branch Manager, Jammu and Kashmir Bank Ltd. Jallandhar as well as Branch Manager, PNB, Miransahib, however, the said application was dismissed on 17.07.2018 and both the prayers of the petitioner/complainant to re-summon the official of PNB Miran Sahib and to summon the official of Branch Manager, Jammu and Kashmir Bank Ltd., Jalandhar were declined.

The petitioner is aggrieved of the impugned order dated 17.07.2018, and challenged the same on the following grounds:-

(i) Because the ld. trial court has erred in law by passing the order impugned on the ground that he evidence by the complainant is still being led and the case is still at its initial stage. No prejudice would be caused to the respondent if witness is recalled or summoned at this stage. Impugned order to that extent is perverse and gravely prejudices the case of the petitioner.

(ii) Because the petitioner has mentioned the word 'Concerned Bank Officials' and even if the name of any witness has not been specifically mentioned in the complaint, the same does not exclude the scope of summoning Branch Manager, Jammu and Kashmir Bank Ltd, Jalandhar. Otherwise also, diet expenses of the witnesses are to be deposited by the party calling his witnesses and specific mention of names of witnesses can be supplied at the stage to deposit of diet expenses and the same would not in any case result in any prejudice to the respondent/accused. Submitted that the petitioner was ready to provide fresh memo/list of witnesses and it was only in that direction that the application u/s 540 Cr.P.C. was filed. Otherwise also concerned Bank officials would mean to include all the witnesses conversant with the presentation and dishonor of the cheque in question and there is no-doubt about that. Ld. Trial court has passed order impugned on erroneous considerations and the same deserves to be set aside.

(iii) Because there was no delay on the part of petitioner to lay motion u/s540 Cr.P.C. as same was filed during the time. Complainant was leading his evidence and said application, as such, falls within legally permissible precincts. Moreover, respondent has caused huge loss to the petitioner by taking away his lifetime saving and it is only to assert his statutory right that the complaint as well as subsequent application u/s 540Cr.P.C was filed by the petitioner.

(iv) Because it is but natural to presume that the authority which issued the memo of dishonor was a necessary witness and has to be summoned otherwise also and the same is gatherable from the facts too, as such the application u/s 540 Cr.P.C. deserved to be allowed without any hassle. Moreover, the petitioner has laid the motion u/s 540 Cr.P.C in time and there was no occasion for the trial court to have passed impugned order in the present form. Viewed thus, order dated17/7/2017 is misconceived and erroneous which deserve to be quashed.

(v) Because trial court took an erroneous view and passed order impugned without satisfying itself about ramifications to case of petitioner. Petitioners' fate hangs in balance in view of impugned order. Respondent, being an influential man, stands to unreasonably benefit after passing of order impugned inspite of him being on wrong side of law, as such, petitioner has approached this Hon'ble Court.

(vi) Because firstly, the trial court passed the order impugned herein, in a cursory and mechanical manner secondly, that the complainant's right to lead evidence has not been closed yet in addition to the fact that the petitioner has cited concerned bank officials as witnesses which mean to include all the bank officials concerning the presentation and dishonor of cheque and a hyper technical approach is bound to result in miscarriage of justice. Procedure is only meant to meet the ends of justice and impugned order miserably lacks to justify dismissal of application. No reasonable satisfaction, much less any judicial application of mind, has been drawn and the order impugned is illegal in that respect, as such, the same deserves to be quashed.

(vii) Because impugned order has resulted in grave miscarriage of justice and is sheer abuse of process of court as also resulting in unimaginable hard ship and miscarriage of justice to petitioner. Submitted that the application u/s 540 Cr.P.C. by petitioner deserved to be allowed for a just decision of the case examination of said witnesses was essential to the cause being pursued in the trial court.

From the perusal of the record, it is evident that respondent-Rajiv Kumar borrowed an amount of Rs.6,00,000/- from the petitioner/complainant and in order to discharge his liability, respondent handed over a cheque No.807133 dated 04.02.2015 drawn on the Punjab National Bank, Miran Sahib. When the petitioner/complainant deposited the said cheque for encashment, the said cheque was dishonored. During the proceedings petitioner/complainant filed an application for summoning the Branch Manager, PNB, Miran Sahib along with record of cheque No.807133 dated 04.02.2015 drawn in the name of PNB, Miran Sahib, Jammu as well as for summoning of the Branch Manager, Jammu and Kashmir Bank Ltd. Jalandhar along with record of the aforesaid cheque. In the application it was stated that both the witnesses are essential for just decision of the case, but the court below vide order dated 17.07.2018 dismissed the said application. The relevant para of the order reads as under:-

"Applicant and non-applicant have reiterated the stands taken by them in the application and objections. Through this application, applicant sought re- summoning of official of PNB Miran Sahib who had already appeared and even examined by the court in absence of counsel for the applicant who did not opt to appear despite opportunity and in the application he has stated that he could not appear due to unavoidable reasons The reason for non-appearance submitted by the applicant as unavoidable reasons is vague and unspecific from which court cannot come to the conclusion whether the absence of the applicant is justified and based on sufficient cause or some reasons and if applications are allowed on the basis of these two words i.e. unavoidable reasons, then every application has to be allowed. Therefore, the reason /cause shown by the applicant for non-examination of witness who had already appeared and his re- summoning as prayed for is not well founded. Therefore, application for re-summoning the concerned official of PNB Miran Sahib is not maintainable, same is rejected.

So far as same application for summoning the Branch Manager of J&K Bank Ltd. Jalandhar is concerned, the applicant has failed to show any reason why he has not specifically listed his name in the complaint when he already knew that his evidence is essential to the decision of complaint. Therefore, application to summon this witness is also not well founded on reasonable grounds. Accordingly, same is also rejected."

In support of his contention, learned counsel for the petitioner relies upon a decision of the Hon'ble Supreme Court in case reported in 2003 (11) SCC 486, P. Chhaganlal Daga Vs. M. Sanjay Shaw.

I have considered the rival contentions. Law with regard to quashing of order of court below while exercising jurisdiction under section 561-A Cr.P.C is well settled. Any order passed by inferior court can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice, under section 561-A Cr.P.C.; by entertaining an application under section 561-A Cr.P.C. the High Court can judicially correct the judgment or order of a subordinate court; if an order of the Court below admittedly against law and when the Court had inherent power to pass any order to secure the ends of justice, then that order has to be corrected under section Section 561A Cr.P.C. Courts are meant for administration of justice and not to thwart the justice on technicalities.

Section 540 reads as under :

"540. Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this 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 essential to the just decision of the case.

From bare perusal of this section, it is evident that it consists of two parts. First part gives discretionary power to court in summoning 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. Second part of section is mandatory and it casts a duty upon the court to call and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. From the above scheme of things, it is convincingly established that the law envisages a participatory and pro-active role for the trial Judge. Both the powers have to be exercised by court judiciously and with care, so that criminal justice seems to have been done to both prosecution and accused.

In a criminal case fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and harmful to the society in general. The courts have to take participatory role in a trial. The object of Criminal trial is to arrive at the truth and not merely to record the statements of witnesses in a mechanical manner. The court in order to arrive at the truth has to give to itself a participatory role. In this direction the tools in the hand of the court are the provisional like Section 165 of the Evidence Act and Section 540 Cr.P.C. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily.

From the aforesaid discussion, it is clear that the courts not only have the power to recall and re-examine the witnesses, which appears to it necessary for the just decision of the case, but it is also the bounden duty of the court to do so in appropriate case.

Hon'ble Apex Court in Mannan SK and others vs. State of West Bengal and another reported in AIR 2014 SC 2950, wherein the Hon'ble Court has held as under:-

"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."

Hon'ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another reported in (2013) 14 SCC 461, while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon'ble Apex Court has held that court should bear in mind that no party in trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

In present case, the witnesses Branch Manager, Punjab National Bank, Miran Sahib, Jammu where the cheque was drawn, though stands examined on 04.05.2017 by court itself and witness from Branch Manager, Jammu and Kashmir Bank Ltd., Jalandhar who issued the "memo of dishonor, both these are important witnesses in complaint under section 138 of N.I Act. The cheque is also pertaining to Rs.6 lakhs, so complainant should not suffer due to technicalities of laws. No prejudice shall be caused to respondent, because he has yet to produce defence; case is at the stage of producing evidence by complainant.

In view of above, this petition is allowed; impugned order is set aside. However petitioner/complainant is granted three opportunities to produce these witnesses along with record if any; court below beside issuing notices shall also allow complainant to take dasti notices.

This petition is disposed off accordingly.