Kunwarlal Rawat vs State of Madhya Pradesh

The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 10/11/2018 passed by Special Judge, Betul in S.T. No.203/2012 whereby the application filed by the petitioner under Section 311 of Cr.P.C. for taking documents on record, has been rejected.

Brief facts of the case, in short, are that Police Station Betul Bazar registered an FIR under Section 409 and 420 of IPC against the present petitioner, on the basis of the complaint filed by Anup Kumar Choudhary, Branch Manager of the Society named as "Aadim Jati Sewa Sahkari Samitee Sahara Betul" on 25.02.2011. In the complaint, complainant alleging that petitioner, being Branch Manager of the Society, misappropriated Rs.6,76,291/- of the Society during his working tenure, who retired on 30/06/2007. After investigation, charge sheet has been filed. After framing the charge prosecution examined its witnesses. After examination of accused under Section 313 of Cr.P.C., the case was fixed for defence evidence. Before this, petitioner filed an application under Section 311 of Cr.P.C. on the ground that he received two receipts (Pramara) of the amount which was mentioned in the FIR and allegation against the petitioner was that he has misappropriated the amount. The petitioner filed an application under Section 311 of Cr.P.C. to recall witness Anoop Kumar Choudhary (PW-11) for further cross-examination and he also wants to seek explanation on both the receipts, but learned trial Court dismissed the application for taking the documents on record and recalling Anoop Kumar Choudhar (PW-11) for further examination vide order dated 10/11/2018.

The petitioner has filed this application on the ground that the petitioner has been charged for misappropriation of the amount of the society at the relevant time, when he was posted as Branch Manager of the Society. Audit mentioned four amounts to which two amounts are pertaining to the receipts which the petitioner wants to present before the Court, are necessary documents. The petitioner also submitted that two receipts which are pertaining to the charge were not in possession of the petitioner. Sub Registrar, Society, Betul provided copy of that documents vide letter date 01/11/2011. That documents submitted by Anoop Kumar Choudhary (PW-11) to the Sub Registrar, Society in a civil case. If those documents were submitted before the Police, this amount would not include in the embezzlement amount. These documents are necessary for fair adjudication of the matter. The petitioner is having documents which he wants to submit in his favour, therefore, for that, cross-examination of Anoop Kumar Choudhary (PW-11) is necessary. Thus, the trial Court erred in dismissing the application filed under Section 311 of Cr.P.C by the petitioner, therefore, prays to set aside the impugned order and permitted the petitioner to submit the documents in further cross-examination of Anoop Kumar Choudhary (PW-11) on that point.

Learned Public Prosecutor submits that the documents were well within the knowledge of the petitioner when Ganesh Prasad (PW-7) and Anoop Kumar Choudhary (PW-11) were cross-examined. Both the witnesses were cross-examined by the petitioner on 19/09/2018. They were present before the Court and cross-examined by the petitioner at length. As per the petitioner, he received the documents sent by the Dy. Registrar of Cooperative Society, Betul vide letter dated 01/11/2011 which goes to show that when the petitioner cross-examined Ganesh Prasad (PW-7) and Anoop Kumar Choudhary (PW-11), he was within the knowledge with the copy of the documents in his possession, but, he did not cross-examine those witnesses on that point. Now the case before the trial Court is fixed for defence evidence. The petitioner is free to examine himself to submit that documents or any other witnesses as he desires. In these premises, he prays for dismissal of the petition.

Learned counsel for the petitioner placed reliance on the decision of Hon'ble Apex Court in the case of Natasha Singh Vs. CBI (State), (2013) 5 SCC 741. In this case before the Hon'ble Apex Court, the appellant sought to examine the witnesses in his favour and the trial Court reached the conclusion that production of such evidence by the defence was not essential to facilitate a just decision of the case, in that situation, Hon'ble Apex Court has held that such type of exemption was wholly misconceived and not tenable in law as the accused has every right to adduce the evidence on rebuttal of the evidence brought on record by the prosecution. However, in the case in hand, the documents were in possession with the petitioner since 2011. Both the witnesses i.e. Ganesh Prasad (PW-7) and Anoop Kumar Choudhary (PW-11) have been cross-examined by the petitioner at length on 19/09/2018. During cross-examination of the witnesses the petitioner has not shown the receipts to those witnesses and after closing of prosecution evidence and after examination of the accused, the petitioner wants to cross-examine those witnesses again. No doubt, the petitioner can adduce defence evidence and submit those documents in his defence and the documents may be proved by calling concerned relevant witnesses. The trial Court has fixed the case for defence evidence and the petitioner is having an ample opportunity to adduce defence evidence.

The case is pending against the petitioner since 2012. Witness Ganesh Prasad (PW-7) and Anoop Kumar Choudhary (PW-11) have been cross-examined by the petitioner on 19/09/2018 since then he has not submitted the documents which were in his possession. There is an opportunity to the petitioner to submit those documents in his defence. If there is an opportunity to the petitioner to submit those documents and related witnesses thereto, there is no need to invoke the inherent powers. No grave injustice or material prejudice is caused to the petitioner as regards his defence by dismissing this application filed under Section 311 of Cr.P.C.

Accordingly, this petition is devoid of any merit and the same is hereby dismissed.