Manoj Sharma vs Naresh Gupta

V.B. Gupta, J.—This petition has been filed under Article 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking quashing of the impugned order dated 21st July, 2007 passed by learned Magistrate, rejecting his application u/s 311 Cr.P.C. The brief facts of the present case are that respondent herein, filed a criminal complaint u/s 138 of the Negotiable Instruments Act (for short as ''Act'') in which the present petitioner has been facing trial. Statement of the petitioner (as an accused) has been recorded u/s 313 Cr.P.C. in the proceedings before the Magistrate. Thereafter, he was afforded opportunity to lead evidence in defence but he did not examine any witness. After hearing, the Id. Magistrate had reserved the case for orders for 29th September, 06. In the meanwhile, on 22nd September, 2006, the petitioner moved an application u/s 315 Cr.P.C. and the same was dismissed by the Magistrate. Thereafter, a revision petition was filed before the Court of Session, which was also dismissed by Session Court. The present application u/s 311 Cr.P.C. has been filed for recalling the complainant for cross-examination. Since, respondent had already received Rs. 1.60 lakh vide receipt dated 10th February, 2001 from the petitioner and now nothing is due from petitioner.

It has been contended by learned counsel for the petitioner that petitioner wants to further cross-examine the respondent who had executed one receipt for Rs. 1,60,000/- in favour of the petitioner and petitioner has returned the entire cheques amount by way of giving cash amount to the respondent and nothing remains to be paid by the petitioner. The respondent did not return the original cheques and became dishonest and filed a complaint against the petitioner. The petitioner is not liable to pay any amount as claimed in the complaint and the application u/s 311 Cr.P.C. to further cross-examine has been filed for proving him false before the court of law and there will be gross miscarriage of justice if the petitioner is not given opportunity to cross-examine the petitioner and in support of his contentions learned counsel for the petitioner has cited Mohanlal Shamji Soni Vs. Union of India and another, .

There is no dispute about the preposition of law laid down in the case Mohanlal Shamji Soni (Supra) that:-

It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

But the question to be seen is as to whether there are grounds for recalling the complainant for further cross examination, keeping in view the facts and circumstances of the case in hand and conduct of the petitioner before the trial court. For that purpose, it would be necessary to refer to the order passed by the trial court and the relevant portion of the impugned order reads as under:-

In this case, the complainant was previously cross examined by Ld. Defence Counsel at length on two different dates i.e. 21.4.04 and 08.09.04 and in the entire cross examination, not even a whisper has been made about this alleged receipt dated 10.02.2001. Admittedly, that cross examination was conducted subsequently to this alleged receipt and it is very surprising that when signed receipt was issued by the complainant of an amount more than the cheque''s amount, why the same was not put to the complainant in his previous cross examination conducted on two different dates. However, a perusal of the record shows that as many as six opportunities were given for defence evidence to accused, but not even a single witness has been examined by him and then his defence evidence was closed, which order was challenged by the accused and the Ld. Sessions Court vide order dated 18.2.2006 was pleased to grant two more opportunities to the accused for defence evidence and after that order, two more opportunities were given to the accused for leading defence evidence which was also not availed and defence evidence was closed again.

Then, an application u/s 315 Cr.P.C. was filed seeking permission to appear himself as a defence witness which application was also declined considering the fact that already sufficient opportunities were given for defence evidence to the accused which included his own evidence in defence. That order was also challenged by the accused and Ld. Sessions Court vide order dated 10.5.07 was pleased to dismiss the revision of the accused on the ground that he is only trying to delay the trial and has not availed the opportunities granted by the Trial Court to him. Now, by way of this application the accused wants to again open the trial on the pretext that the receipt dated 10.2.01 is just and essential.

The record shows that petitioner is only interested in delaying the trial of case and the criminal complaint is pending before the trial court since 2001 and the respondent has been cross-examined as far as back in the year 2004. Nowhere the petitioner has taken the plea of the alleged receipt executed on 10th February, 2001. There is nothing on record to show that the petitioner has ever taken this defence even in the reply sent in response to notice, u/s 138 of the Negotiable Instruments Act. Under these circumstances decision of Mohanlal Shamji Soni case (Supra) is not applicable to the facts of the present case.

Hence, I do not find any infirmity or illegality in the impugned order passed by the Ld. Magistrate. The present petition is nothing but is a gross abuse of the process of law and has been filed to delay the proceedings pending in the trial court and to a certain extent, the petitioner, has succeeded in delaying the trial of this case and has also wasted the time of various courts by filing false, bogus and frivolous applications. Hence, there is no merits in the present petition and the same is dismissed with costs of Rs. 10,000/-. The petitioner is directed to deposit the costs of Rs. 10,000/- with the trial court within one month from today, failing which the trial court shall recover the same in accordance with the provisions of law.