Judgment:
A.H. Joshi, J.
1. Heard learned Advocate Mr. K.V. Thomas for the petitioner and learned Advocate Mr. Nikhil Deshpande with learned Advocate Mr. A.S. Jaiswal for the respondent No. 1. Perused the application, order thereon, and all other annexures.
In the case under Section 138 of the Negotiable Instruments Act, petitioner-complainant had completed and closed her evidence, but, therefore filed applications (Exhs.100 and 101) seeking leave to file new documents and praying for permission to prove those.
2. It is alleged in these applications that certain documents were recently found, as those were misplaced/lost, and were relevant and vital for the case and hence production thereof and leave to prove the same be granted.
Applications were rejected by the Trial Court, holding that documents now sought to be produced and proved attempted to couch a plea totally different from one contained in the deposition of the complainant, and hence present petition is filed by the complainant.
3. Petition is opposed by the accused by urging that the petitioner has not and cannot overcome the facts and reasons which have weighed before Trial Court.
In the oral submissions-in-reply, learned Advocate for petitioner admits the factual position reflected in the impugned order, however, in rejoinder, attempts to justify the challenge, urging that petitioner's admission, which is the foundation of impugned order, was a mistaken act which the petitioner wants to mend by applications (Exhs. 100 and 101).
4. In order to test the submissions, this Court has once again perused the impugned order. It is seen that the admission, subject-matter, which is referred to in the order under challenge reads as follows:
4. ...However, on going through the cross-examination of complainant himself which is recorded below Exh.18 by the Court on 20-2-2003, complainant has stated on oath in cross-examination that the amount was given by her to the accused in cash.
The said amount consists of her own amount and the amount of his friend.
She further admits that whenever he used to lent any amount to anyone, he used to take the receipt. In this transaction also, she has taken the receipt of amount.
However, she has not filed these receipts in this case because accused has taken back all receipts from her when she gave him a cheque on which basis this complaint is filed.
5. Therefore, as per the statement of complainant recorded on oath during evidence, the alleged receipts which complainant want to produce with list Exh.102 were taken away by the accused from her when the accused has drawn a disputed cheque of this case.
5. Then, question arises after 2002, how these receipts came in possession of the complainant.
(While quoting, the sub-paragraphing is done for convenience of reference).
[quoted from page Nos. 18 and 19 of the Writ Petition paper-book].
It is nowhere alleged that Trial Court has committed any error in accurately recording the deposition of the complainant or in appreciation of the admission of the complainant as recorded and referred to in impugned order.
It is seen from averments contained in Exhs. 100 and 101 that those read as follows:
The complainant is this day filing certain original acknowledgments-cum-receipts and the income return issued by the accused from time to time to the complainant upon the hand loan made by the complainant.
It is submitted that the said documents have been traded out by the complainant recently as she is filing the same today without wasting any time.
The complainant respectfully submits that the said acknowledgments-cum-receipts and Income Tax Return are vital important and relevant for the fair adjudication of the present proceeding. It is well settled that the function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who amongst the parties performed better.
(While quoting, the sub-paras are made for convenience).
[quoted from page No. 13 of the Writ Petition paper-book]
6. In the Revision Application filed before Sessions Court aggrieved by the order passed below Exhs.100 and 101, the petitioner has raised various grounds, such as the documents being important etc., and pleaded lack of consideration on the part of the Magistrate in application of mind to the contents of Exhs.100 and 101, and the order being perverse, however, all these grounds are not pressed.
In the Grounds (f) and (h), emphasis is on the jurisdiction and power of Court under Section 311 of Criminal Procedure Code with grievance that the Courts below have failed to consider the compass of jurisdiction available to the Court under Section 311 of Criminal Procedure Code.
7. Next ground is about procedural aspect of exercise of jurisdiction by Magistrate. It shall be better and convenient in order to appreciate the content and tenor thereof to quote the averments which read as follows:
j)....
k)....
l) A perusal of the impugned order shall reveal that the learned Magistrate did not even bother to consider the applications Exs. 100 and 101 on its true merits and proceeded to reject the same in a most casual and slipshod manner, without adverting to the facts canvassed by the applicant as also the provisions of law applicable thereto.
The applicant has demonstrated that none of the allegation in the non-applicant, prima facie constitute the commission of offence under Section 138 of the Negotiable Instruments Act.
The applicant has demonstrated that the non-applicant in order to raise false defence for the alleged misplacing of the dishonour cheque and by misusing the same, the applicant has filed the aforesaid complaint.
The applicant has also demonstrated that the defence alleged by the non-applicant is vexatious and untenable.
The learned Magistrate have failed to consider this aspect of the matter and proceeded to mechanically reject the application.
(While quoting, sub-paras are made for convenience).
[quoted from page Nos. 23 and 24 of the Writ Petition paper-book].
8. Learned Advocate for the petitioner, in order to urge that the applications ought to have been allowed, as those would fit within the compass of jurisdiction of Section 311 placed reliance on following Judgments:
(a) Mohanlal Shamji Soni v. Union of India and Anr. 1991 Supp (1) SCC 271, (b) Rajendra Prasad v. Narcotic Cell through its Officer-in-charge, Delhi : 1999CriLJ3529 , (c) P. Chhaganlal Daga v. M. Sanjay Shaw : (2003)11SCC486 , and (d) U.T. of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan : 2006CriLJ4636 .
There cannot be a dispute on the proposition as to the existence and availability of the jurisdiction of the Court to recall witness under Section 311, Criminal Procedure Code. It shall suffice to refer to only two Judgments, namely (1) P. ChhaganlalDaga v. M. Sanjay Shaw : (2003)11SCC486 , and (2) U.T. Of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan : 2006CriLJ4636 (cited supra), to support permissibility and parameters thereof. No detailed discussion is necessary.
9. The case of P. Chhaganlal Daga v. M. Sanjay Shaw (supra) was under the Negotiable Instruments Act. In this case, the calendar of case before Hon'ble Supreme Court was analogous to one as in the case at hand, and prayer for permission under Section 311, Criminal Procedure Code was granted.
It would be further imperative to rely upon case of U.T. of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan (supra) to notice what are the barriers and safeguards to be taken care while considering application under Section 311, Criminal Procedure Code. From this judgment, it is clearly seen that if it shall be seen from facts of every case whether the party applying is trying to fill in lacuna and if it be so, then the application under Section 311 ought not be allowed.
Therefore, whether on facts of each case, whether such application is required to be entertained will have to be decided.
10. Therefore, this Court is required to advert to the facts of present case and the background in which the application under Section 311 was filed, the grounds which were raised and how has the Trial Court dealt with it.
As indicated earlier, this Court has already perused the record, even quoted crucial averments and the findings recorded by the Trial Court.
Finding quoted in para 7 reveals the ground as to why present petitioner's application has been rejected by the Trial Court. It is seen that what has weighed in the mind of the Trial Court is the underlined portion quoted and referred to therein, namely the documents sought to be produced falsify and contradict the fact which the petitioner has brought on record to prove.
11. Thus, if the complainant's application (Exh.101) is to be considered in her favour, it would result in allowing the complainant to take a stand which is topsy-turvy of what she has asserted before the Court on oath.
On the face of it, the plea contained in Exhs.100 and 101 has portrayed an attempt of the complainant to bring on record the evidence, which was lateron discovered, however, the facts represented through these documents built a totally new case which even is showing stance diagonally opposite to facts which are proved by the complainant. This is something even more than filling lacuna.
12. In the result, the analysis of conduct of the complainant is that it is not a case where the complainant can be said to be attempting to bring some evidence on record which was beyond her control, by taking help of Section 311 of Criminal Procedure Code, and runs complimentary to petitioner's case. On the other hand, the complainant is trying to bring on record certain evidence which positions her stand to be contrary to what was taken earlier.
In the factual background brought on record by the petitioner, her attitude can be described as of initially giving sermon to the Trial Court in what she has addressed as to what is the function of Criminal Court, as can be seen from the quotation contained in para 10 above.
While drafting the Revision Application, she does not look upon her admissions which are shown in the impugned order as a mirror, the petitioner rather discourteously blames the Trial Court, disregarding all canons of etiquettes of need of polite language in drafting, and reiterates the same stand before this Court.
13. Perusal of applications (Exhs. 100 and 101) indicates the grounds raised in Memo of Revision Application as well as grounds raised in present Writ Petition, it is seen that the language used in applications (Exhs. 100 and 101) and averments therein do not contain any expression of remorse or any effort or attempt to mend and overcome a mistaken or wrong admission.
When the learned Advocate for the petitioner was once again faced with the findings recorded against the petitioner in the Trial Court, sheerly with ingenuity of a legal brain, learned Advocate accepts during oral submissions that it was a mistaken statement made before the Trial Court, and this submission is coming forward for the first time.
14. It is not shown that any attempts were made or steps were taken soon after cross-examination (Exh.18) was over to rectify the mistake in the testimony, be it that it was erroneous recording.
Even no efforts are shown to have been made to retract from the said admission and now at the fag end of the trial, effort is made to put forward a story which falsifies statement on oath already on record, apart whether it would be permissible.
15. In these premises, jurisdiction under Section 311, Criminal Procedure Code, which is inherent justice jurisdiction of the Court to recall the witnesses if the Court perceives and is satisfied about the need thereof to be imperative for doing justice, ought not be allowed to be abused in the manner in which it is attempted in the application and present Writ Petition.
16. In the result, petition does not merit any further indulgence. Rule is discharged with costs.