Jai Prakash Jaiswal vs Yashwant Singh Sachan

This miscellaneous criminal case has been instituted on an application under Section 482 of the Code of Criminal Procedure filed on behalf of

accused petitioner Jai Prakash Jaiswal. It is directed against the order dated 24.08.2017 passed by the Court of JMFC, Jabalpur in complaint

case no.14805/2013, whereby the application of accused petitioner Jai Prakash Jaiswal under Section 311 of the Code of Criminal Procedure for

recalling the respondent complainant Yashwant Singh for further cross-examination was dismissed.

The facts giving rise to this miscellaneous criminal case in nutshell are that complainant respondent Yashwant Singh filed a complaint case under

Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque in the sum of Rs.1,50,000/- issued by petitioner accused Jai

Prakash Jaiswal. During the trial, complainant respondent Yashwant Singh was examined on 21.03.2017. Subsequently, on 19.05.2017, petitioner

accused Jai Prakash Jaiswal moved an application under Section 311 of the Code of Criminal Procedure for recalling the respondent complainant

for further crossexamination on the ground that the defence of the accused in aforesaid complaint is that one Hari Mohan Das Tandon executed an

agreement to sell agricultural land to accused Jai Prakash Jaiswal for a sum of Rs.14,46,000/-. Complainant respondent Yashwant Singh Sachan

was broker in aforesaid transaction. Pursuant to aforesaid agreement, accused petitioner Jai Prakash Jaiswal had paid Rs.2 lacs in cash to Hari

Mohan Das Tandon by way of earnest money on 10.12.2006. In lieu thereof, Hari Mohan Das Tandon had issued a receipt in favour of petitioner

accused Jai Prakash Jaiswal. Accused Jai Prakash Jaiswal had agreed to pay Rs.60,000/- to complainant Yashwan by way of brokerage and as a

security for aforesaid amount, had given him a blank cheque. However, aforesaid transaction feii through and Hari Mohan Das Tandon sold the

agricultural land to someone else. Thus, nothing was due by accused to the complainant by way of brokerage; however, the complainant misused

the blank cheque and filled an amount of Rs.1,50,000/- arbitraryly and filed this complaint.

Learned counsel for the petitioner accused has invited attention of the Court to paragraph nos. 11 and 12 of the crossexamination; wherein, the

complainant has admitted the transaction. Learned counsel for the petitioner further submits that the accused wants to further cross-examine the

complainant on aforesaid transaction in order to bring on record some additional facts which learned counsel engaged by the accused earlier could

not do; therefore, it has been prayed that the order dated 24.08.2017 be set-aside and trial Court be directed to recall the complainant for further

crossexamination.

Learned counsel for the respondent complainant has opposed the application mainly on the ground that this miscellaneous criminal case under

Section 482 of the Code of Criminal Procedure is not maintainable because the accused has failed to exhaust his remedy of a criminal revision

before the Court of Sessions against the impugned order. It has further been submitted that the accused had ample opportunity to cross-examine

the complainant on 21.03.2017. In fact, the complainant was examined at length with regard to the alleged transaction in paragraph nos. 11 and

The fact that the accused has now engaged another counsel, who feels that some more questions ought to have been asked, is no ground for

exercise of powers under Section 311 of the Code of Criminal Procedure.

It has been held by the Supreme Court in the case of Sethuraman Vs Rajamanickam, (2009) 5 SCC 153 that a criminal revision against the

order passed on an application under Section 311 of the Code of Criminal Procedure is not maintainable; as such, the accused was entitled to file

this miscellaneous criminal case under Section 482 of the Code of Criminal Procedure before High Court; therefore, the argument that this

miscellaneous criminal case is not maintainable is not sustainable.

Now, the Court shall proceed to consider this miscellaneous criminal case under Section 482 of the Code of Criminal Procedure on merits.

There is no doubt that Section 311 of the Code of Criminal Procedure clothed a criminal court with wide discretion to examine or re-call for

further examination any witness; however, the power under Section 311 of the Code of Criminal Procedure must be invoked by the Court with

care, caution and circumspection in order to meet the ends of justice and for compelling reasons. The Court should keep in mind that fair trial

entails the interest of not only the accused but also victim and the society.

In the case of Hoffman Andreas Vs. Inspector of Customs, (2000) 10 SCC 430, the Supreme Court held as follows:

Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on

account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel

who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the

new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the

scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In

such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in

the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is

basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.

However, no such extreme situation prevails in the present case. In this case, the erstwhile counsel is very much around for being consulted as to

why he did not probe the matter any further then what he actually did. It is not as if aforesaid subject was not touched at all. It was. However,

earlier counsel asked questions on the subject which he considered to be necessary. Subsequently, the accused choose to engage another counsel.

That counsel is of the view that some more questions ought to have been asked.

The Supreme Court in the case of Ag Vs. Shiv Kumar Yadav, AIR 2015 SC 3501 has held that mere change of counsel cannot be a ground to

re-call a witness. The trial Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that

the victim of the crime is not unduly harassed. The accused had appointed counsel of his choice. The earlier counsel was given due opportunity and

had duly conducted the crossexamination. They were under no handicap. If the request of the present counsel is upheld, it may amounts to tacit

admission that the earlier counsel had not done a professional job. The Supreme Court has held that no finding could be recorded that the counsel

appointed by the accused earlier were incompetent, particularly, at back of such counsel. Since the questions were asked in the cross-examination

with regard to aforesaid transaction, there is no ground for recording a finding that further cross-examination is necessary in order to do complete

justice. Thus, the application under Section 311 of the Code of Criminal Procedure appears to be nothing but an attempt to prolong the trial. Thus,

the trial Court committed no illegality, irregularity or impropriety in dismissing the application under Section 311 of the Code of Criminal

Procedure; as such, the order, even on merits warrants no interference.

Consequently, this miscellaneous criminal case under Section 482 of the Code of Criminal Procedure deserves to be and is accordingly

dismissed.