Judgment:
Crl.
Misc.
not M-4466 to 4472 o”
1. .IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1
Criminal Misc.
not M-4466 of 2013 (O&M) Date of Decision : April 1st, 2013 M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent 2.
Criminal Misc.
not M-4467 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent 3.
Criminal Misc.
not M-4468 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent 4.
Criminal Misc.
not M-4469 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent Crl.
Misc.
not M-4466 to 4472 o”
2. .5.
Criminal Misc.
not M-4470 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent 6.
Criminal Misc.
not M-4471 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent 7.
Criminal Misc.
not M-4472 of 2013 (O&M) M/s Bansal Traders ...Petitioner Versus Manmohan Singh ...Respondent CORAM : HON'BLE Mr.JUSTICE VIJENDER SINGH MALIK 1 Whether Reporters of local papers may be allowed to see the judgment?.
2.Whether to be referred to the Reporters or not?.
3.Whether the judgment should be reported in the Digest?.
Present Mr.K.S.Dadwal, Advocate, for the petitioner.
Mr.Sandeep Arora, Advocate, for the respondent.
Crl.
Misc.
not M-4466 to 4472 o”
3. .VIJENDER SINGH MALIK, J.
The above mentioned seven petitions between the same parties have been brought by M/s Bansal Traders through its partner Anand Bansal under the provisions of section 482 Cr.P.C.for quashing of order dated 19.1.2013 passed by learned Judicial Magistrate Ist Class, Hoshiarpur whereby application under section 311 Cr.P.C.for recalling Anand Bansal (CW-4) for further cross-examination has been allowed.
Seven complaints under section 138 of Negotiable Instruments Act, 1881 (for short, “the Act) have been brought by M/s Bansal Traders against Manmohan Singh.
In the said complaints, Anand Bansal has made a statement by way of his affidavit in his examination in chief and had been cross-examined twice.
Despite it, Manmohan Singh filed an application under section 311 Cr.P.C.for recalling Anand Bansal (CW-4) for further cross-examination.
Manmohan Singh has claimed that his previous counsel could not put material questions to the witness, who has been a partner of M/s Bansal TradeRs.He has mentioned those questions which could not be put to Anand Bansal.
Elaborating the point, it has been mentioned in the application that in fact, Kamal Kumar Bansal, the other partner of the firm is the real brother of the witness and it is Kamal Kumar Bansal who is doing the business of the firm and was dealing with the accused.
According to him, the goods were supplied and other dealings between the firm and the accused had been through Kamal Kumar Bansal.
He has narrated the entire transactions between him and the firm and has claimed that the above mentioned material questions could not be put to Crl.
Misc.
not M-4466 to 4472 o”
4. .Anand Bansal.
According to him, these questions were inadvertently not put to the witness by his previous counsel, although, the counsel was briefed about it by him.
Reply to the application was filed opposing the application on the ground of maintainability, stage of filing the application and on the plea that change of counsel did not give right to the accused to further cross-examine the witness.
The other averments are also denied.
Hearing learned counsel for the parties, learned Judicial Magistrate Ist Class, Hoshiarpur allowed the application vide order dated 19.1.2013.
Learned counsel for the petitioner has contended that affidavit forming examination in chief of Anand Bansal was filed on 20.7.2009.
According to him, he was cross-examined, firstly, on 31.5.2011 and then his cross-examination was deferred and was resumed on 18.12.2011.
According to him, thereafter the evidence of the complainant was over and accused was examined under section 313 Cr.P.C.on 20.9.2012.
He has submitted that application for recalling Anand Bansal was filed on 18.12.2012 on the ground that the previous counsel could not put material questions to the witness.
According to him, the counsel was changed by the accused on 17.5.2012, even prior to the recording of statement of the accused under section 313 Cr.P.C.He has further submitted that the accused in his application remained occupied with the facts that the business of the firm was conducted by Kamal Kumar Bansal and not by Anand Bansal and that he had dealings with Kamal Kumar Bansal.
According to him, what is to be asked from Anand Crl.
Misc.
not M-4466 to 4472 o”
5. .Bansal is not specified in the application.
He has further submitted that if Kamal Kumar Bansal was dealing with the business of the firm, he could call Kamal Kumar Bansal in his defence and examine him.
He has cited before me a decision of a Coordinate Bench of this court in Ravinder versus State of Haryana 2011 (2) R.C.R.(Criminal) 393 where recalling of the witness on the ground that earlier counsel not examined him on certain points, is held impermissible.
Learned counsel for the respondent has submitted that the court has exercised the discretion in allowing the application and it should not be disturbed.
He has cited before me a decision of another Coordinate Bench of this court in Hoffmann Andreas versus Land Customs Amritsar, 2000 (4) R.C.R.(Criminal) 185.
It was a case where some witnesses were prayed to be recalled for further cross- examination on the ground that counsel for the accused had died and new counsel had been engaged.
On the aforesaid submissions, two situations emerge.
It is required to be seen as to whether they require a different set of principles for being considered.
The fiRs.situation is where application under section 311 Cr.P.C.for recalling an already examined witness is dismissed and the aggrieved person challenges the said order before this court under the provisions of section 482 Cr.P.C.The second situation is where the application under section 311 Cr.
P.C.for recalling a witness for further cross-examination had been allowed and the order allowing the application has been challenged before this court.
In my opinion, separate considerations are not required for dealing with the two Crl.
Misc.
not M-4466 to 4472 o”
6. .situations.
It is to be seen as to whether the discretion has been rightly exercised by the court in deciding the application under section 311 Cr.P.C.or not.
Counsel for the accused was changed on 17.5.21012.
It is true that Anand Bansal was cross-examined earlier to that date.
For exercising discretion under section 311 Cr.P.C., the court has to see as to whether any material question was left to be put to the witness by the previous counsel.
I may say here itself that change of counsel is not held to be a reason for allowing recalling of the witness for further cross-examination in Hoffmann Andreas's case (supra).The reasons for which the prayer was allowed by Hon`ble Supreme Court of India are not evident from the reported judgment.
The only question to be considered in deciding such a prayer is as to whether any material question was left to be put to the witness and that the party could not be blamed for not putting that material question to the witness earlier.
Apart from mentioning that Kamal Kumar Bansal has been doing the business of the firm and that Anand Bansal had not been doing the business of the firm, no material question has been mentioned in the application.
Even learned Judicial Magistrate Ist Class did not take note of any material question which could not be put to Anand Bansal while he was in the witness box.
The application has been allowed by learned Magistrate without giving any reasons.
It is only mentioned that the court found force in the arguments advanced by learned defence counsel.
Learned Magistrate could not even take note Crl.
Misc.
not M-4466 to 4472 o”
7. .of any material questions which could not be put to the witness earlier.
Therefore, the order dated 19.1.2013 passed by the Magistrate is unreasoned and cryptic.
There is no reason otherwise also for which recall of Anand Bansal for further cross-examination could be justified.
In these circumstances, I find the discretion to have been exercised by learned trial court in favour of the accused without any reason and, therefore, the impugned order cannot be sustained.
Consequently, the petitions are allowed and the order dated 19.1.2013 passed by learned Judicial Magistrate Ist Class, Hoshiarpur is set-aside.
(VIJENDER SINGH MALIK) JUDGE April 1st, 2013 som