Rahul Bhatia Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
- labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - 7. to arrive at a correct conclusion, i would like to deal with certain judgments cited by the respective parties. 14. in support of the argument that since the complainant executed a promissory note and four cheques were given to the complainant in lieu of the security learned counsel placed reliance on the judgment of the supreme court bharat barrel and drum manufacturing company v, amin chand payrdal [1999] 97 comp cas 786 ;air 1999 sc 1008 wherein the supreme court has held that (headnote of air) :promissory note--presumption as to consideration--burden of proof--promissory note alleged to have been executed as a collateral security and not for 'value received' as mentioned therein--failure of defendant to prove non-existence of consideration--onus cannot be shifted on plaintiff--claim made by plaintiff has to be allowed even if evidence adduced by plaintiff is found to be unbelievable in rebuttal of defendant's case',and further observed that the court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative eviden if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instruments act. 19. after going through the judgments and relevant provisions of law referred and discussed, i am of the firm opinion that the learned trial court has not considered the facts and also not appreciated the provisions of law as well as the law laid down by the supreme court and various high courts and wrongly rejected the application dated february 27, 1999. consequently, the order dated march 3, 1999, passed by the learned trial court deserves to be set aside and the same is set aside and the learned trial court is directed to summon the complainant as a witness and shall examine her and also give opportunity for cross-examination to the accused petitioner.k.s. rathore, j.1. the petitioner preferred this revision petition under section 397 of the criminal procedure code, 1973, against the order dated september 11, 2001, passed by the learned additional chief judicial magistrate (communal riots) mini secretariat, jaipur city, jaipur in criminal complaint no. 401 of 2001 (mrs. renu gupta v. rahul bhatia). this revision petition comes up before this court on october 1, 2001. this court vide order dated october 1, 2001, on the request of learned counsel for the petitioner, treated this revision petition as a criminal miscellaneous petition under section 482 of the criminal procedure code.2. the brief facts of the case are that the petitioner was working as a sub-broker in the share market of jaipur and was managing his own office in 218, shop no. 5, ramgali no. 1, raja park, jaipur in the name and style of vinayak investments, jaipur. the petitioner paid a sum of rs. 62,000 by account payee cheques to the complainant against the amount due. though/ the complainant admits the aforesaid amount which was paid through account payee cheques, it is not disclosed by the complainant in her statement on which date, she paid rs. 1 lakh to the petitioner by cash or cheque or in the shape of goods.3. a notice under section 138 of the negotiable instruments act, 1881 (for short the 'act') was issued by the complainant wherein it was stated that four cheques of rs. 25,000 each were given to the complainant against rs. 1 lakh. details of the cheques are as under :a. cheque no. 671765 dated july 29, 1997 rs. 25,000. b. cheque no. 671763 dated august 2, 1997 rs. 25,000. c. cheque no. 671764 dated august 2, 1997 rs. 25,000. d. cheque no. 671766 dated august 2, 1997 rs. 25,000.4. the cheque no. 671765 was presented by the complainant to the bank on july 29, 1997, which was returned unpaid on the ground of insufficient funds. the other cheques were also presented to the bank by the complainant which were also returned by the bank on account of insufficient funds. the complainant after completing the necessary formalities as contemplated under section 138 of the act, submitted a complaint before the court of the judicial magistrate no. 6, jaipur city on july 6, 1997, along with 18 documents in support of his case. whereupon, cognizance was taken against the accused-petitioner on march 5, 1998, and was summoned by the trial court and the statement of the complainant's power of attorney holder shri sushil gupta was recorded on october 27, 1998, and thereafter, the statement of accused petitioner under section 313 of the criminal procedure code was recorded in the year, 1998. in defence the accused examined three witnesses. when the matter came up for final arguments, the accused-petitioner moved an application under section 311 of the criminal procedure code for recalling smt. renu gupta as a witness along with some documents on april 3, 2001. the learned trial court after hearing both the parties dismissed the said application against which the present miscellaneous petition has been filed before this court.5. learned counsel appearing on behalf of the petitioner has challenged the order dated march 3, 1999, by which the trial court has dismissed the application dated february 27, 1999, on the ground that there is inconsistency in the statement of the compiainant-smt. renu gupta. namely, at some place, she claims that she is doing a business of money lending and at another place she writes that she was doing the business of share brokerage and therefore, only the witness herself can prove that what business she was doing and on what account, she is entitled to recover rs. 1 lakh from the petitioner. it is also submitted by learned counsel for the petitioner that the complainant is in possession of the promissory note of rs. 1 lakh and four cheques of rs. 25,000 each given to the complainant as security for payment. therefore, the complainant was not entitled to present the cheques for payment unless she returns the promissory note because she cannot claim to recover the double amount for a single transaction of loan as admitted by the complainant herself. a reference has been made by learned counsel to section 138 of the act which is reproduced as under :'dishonour of cheque for insufficiency, etc., of funds in the account : where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : explanation.--for the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.' 6. learned counsel submits that by a bare reading of sub-clause (a) of section 138 of the act and the explanation thereto, it is clear that if a cheque is issued against a liability which is legally enforceable and bounces then only a person be convicted, otherwise not and if a cheque issued in security is dishonoured the person cannot be punished under section 138 of the act.7. to arrive at a correct conclusion, i would like to deal with certain judgments cited by the respective parties.8. it is given out that the petitioner immediately replied to the notice issued by the respondent and stated that money is not due against him, unfortunately the reply was not placed before the learned trial court. therefore, the trial court is unable to appreciate the reply which was submitted by the petitioner. learned counsel referred to the case k.k. sidhartharan v. t. p. praveena chandran [1998] dcr 630 and arvind maneklal tiator v. state of gujarat [2001} 92 crimes 186 wherein the hon'ble supreme court held that if there is a bona fide dispute between the parties, then no case under section 138 of the act could be said to be made out.9. learned counsel for the petitioner on the ground whether the complainant can legally enforce the debt which is not termed as debt and simply the cheques were handed over for the purpose of security, placed reliance on the judgments on the cases of balaji sea foods exports (india) ltd. v. mac industries ltd. [1999] dcr 38 and voruganti v. godawari fertilizers and chemicals ltd. [1999] dcr 42. learned counsel also submits that there is a sufficient reason for summoning the complaint as defence witness. since the complainant was not examined and her power of attorney was only examined, therefore, in the interest of justice, it is necessary to summon the complainant as defence witness but the learned trial court has seriously erred in not considering the application dated february 27, 1999, and wrongly rejected the same vide order dated march 3, 1999. in support of this argument, he placed reliance on the judgment rendered in the case of bharat barrel and drum . v. banaras state bank ltd. [2001] 103 comp cas 782 (ap); [2001] 1 rcr ori. 578 ; jeetendra singh floora v. ravikant talwani [2001] 2 rcr crl. 75 and sreenivasan v. state of kerala [1999] 111 comp cas 740 (ker); [2000] dcr 199 and further placed reliance on this high court decision passed in criminal miscellaneous petition no. 682 of 1997 in the matter of v. m. chopra v. state [2000] dcr 148 particularly in para. 2 wherein it was held that the petitioner is entitled to summon the account books and relevant document of the complainant. learned counsel refers to section 254 of the criminal procedure code which gives an equal right to the accused also to summon any witness in his defence which stipulates as under :'254. procedure when not convicted.--(1) if the magistrate does not convict the accused under section 252 or section 253, the magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.'10. in view of the provision of section 254 of the criminal procedure code, the supreme court was pleased to hold that the right of the accused to summon the witness on which the prosecution was relying in the cases of hukum singh v. state of rajasthan [2000] 3 rlw 493 (sc) and shri murugan agencies v. khetan and co. [2000] 2 bc 325 (mad). since the complainant was not examined and her power of attorney was examined, therefore, the power of attorney can state the facts of his personal knowledge or he cannot state for, or on behalf of the complainant.11. learned counsel for the petitioner has placed reliance on the judgment in the case of jitendra singh flora v. ravikant talwar [2001] 2 rcr (criminal) 75 wherein madhya pradesh high court has held that the cheques issued as security--dishonour of cheques--no offence under section 138 made out--there was no intention to create debt or liability.12. learned counsel also placed reliance on the case of swastik coasters p. ltd. v. deepak brothers [1997] 89 comp cas 564 ; dcr 259, the andhra pradesh high court has held that 'on date of issuing of cheque, material was not supplied by the complainant and cheque was issued post-dated--material supplied was found not of agreed quality--cheque was presented third time after accused intimated about rejection of material--no infirmity in reasoning of trial court that on date of cheque there was no existing debt or liability--no offence was constituted under section 138 of the act'.13. he also placed reliance on the case of balaji seafoods exports (india) ltd. v. mac industries ltd. [1999] dcr 38 wherein the madras high court has held that if there was no subsisting liability or debt--cheque handed over as security--provisions of section 138 of the act not at all attracted--complaint not maintainable.14. in support of the argument that since the complainant executed a promissory note and four cheques were given to the complainant in lieu of the security learned counsel placed reliance on the judgment of the supreme court bharat barrel and drum manufacturing company v, amin chand payrdal [1999] 97 comp cas 786 ; air 1999 sc 1008 wherein the supreme court has held that (headnote of air) : 'promissory note--presumption as to consideration--burden of proof--promissory note alleged to have been executed as a collateral security and not for 'value received' as mentioned therein--failure of defendant to prove non-existence of consideration--onus cannot be shifted on plaintiff--claim made by plaintiff has to be allowed even if evidence adduced by plaintiff is found to be unbelievable in rebuttal of defendant's case', and further observed that the court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led it is to be seen with a doubt. the bare denial of the passing of the consideration apparently does not appear to be any defence. something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. a similar view has also been taken by the madras, kerala and madhya pradesh high courts in the cases referred hereinabove.15. in reply to the arguments advanced by learned counsel for the petitioner, learned counsel for the respondent submits that the application for recalling of the complainant-smt. renu gupta has been filed by the petitioner just to harass a lady and to cause delay in deciding the case which is pending before the trial court since september 6, 1997. in the application, the petitioner has not given any cogent reason as to why smt. renu gupta-complainant should be summoned as witness. there is no material available on record which justifies calling of smt. renu gupta. the complainant has got examined her power of attorney holder in support of her case and full opportunity was provided by the learned trial court to counsel to defend their case and cross-examine the complainant's witnesses and the witnesses have been cross-examined at length by counsel for the accused petitioner. at the stage of final disposal, the petitioner has got no right to ask the complainant to be produced as witness. it is also submitted by learned counsel for the respondent that in the statement of the accused-petitioner, it is not denied that he had given the four cheques. in support of his argument, learned counsel placed reliance on the judgments in inderjeet roy v. republic of india [1999] cri. lj 4727 (orissa), beagari pentaiah v. state of andhra pradesh [1999] cri. lj 1713, cheeku singh v. state of rajasthan [1997] rlw 3 raj 1661 and chaina ram v. state of rajasthan [1999] rlw 3 raj 1454. learned counsel for the respondent in support of his arguments particularly placed reliance on the judgment rendered in the case of inderjeet roy v. republic of india [1999] cri. lj 4727 wherein the orissa high court has held that omission minor and insignificant is of no consequence--question of omission has to be decided on basis of facts and circumstances of each case--it is neither possible nor desirable to lay down any hard and fast rule on this subject and further held that question as to whether a witness should be recalled or not is essentially within the discretion of the trial court--scope of interference in such matter is very limited. learned counsel also cited a judgment in beagari pentaiah v. state of andhra pradesh [1999] cri. lj 1713 wherein the andhra pradesh high court has held that application for--no factual basis laid down before trial court for showing it was essential to recall witness for cross-examination to arrive at a just decision--dismissal of application, not improper and the same view has been taken by this court in the case of cheeku singh v. state of rajasthan [1997] 3 rlw raj 1661 that the person directed to be summoned or recalled is essential for the just decision of the case then the direction cannot be termed as irregular or unjust.16. learned counsel for the respondent on the ground that merely because on account of change of advocate, the accused-petitioner is entitled to recall the witnesses placed reliance on the judgment in the case of chaina ram v. state of rajasthan [1999] rlw 3 raj 1454 wherein this court has held that mere change of advocate is not a ground to give opportunity to recall witnesses and to give opportunity for further cross-examination.17. i have carefully gone through the judgment referred to by learned counsel for the parties. i agree with the proposition and ratio decided by the judgment referred to by learned counsel for the petitioner in the case of jitendra singh flora v. ravikant talwar [2001] 2 rcr (criminal) 75. since the accused-petitioner has raised the issue which requires determination that he offered four cheques in lieu of security and in lieu of the promissory note executed by the accused-petitioner and as held by the madhya pradesh high court and supreme court that if cheques are issued as security and the same are dishonoured, no offence is made out under section 138 of the act. there was no intention to create a debt or liability. learned counsel for the petitioner is further able to convince this court on the basis of the judgments and pleadings. since the power of attorney of the complainant has been examined and new facts raised by the accused-petitioner cannot be answered by the power of attorney holder of the complainant, therefore, the complainant is necessarily to be called as witness as held by the supreme court in the judgment in bharat barrel and drum manufacturing company v. amin chand payrelal [1999] 97 comp cas 786 ; air 1999 sc 1008 that the defendant can prove the non-existence of consideration by raising a probable defence. if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instruments act.18. i have also perused section 138 of the act. for compliance with section 138, it is necessary to establish that debt and other liability is legally enforceable against the accused petitioner. another case which was referred to by learned counsel for the respondent in beagari pentaiah v. state of andhra pradesh [1999] clj 1713 the andhra pradesh high court has held that no factual basis laid down before the trial court for showing it was essential to recall witness for cross-examination to arrive at a just decision, dismissal of application was held not improper. for calling such witness for cross-examination, there should be a factual basis laid down before the trial court for showing it, it was essential. here, in the instant case, as i have already stated above, the accused-petitioner is able to show the factual basis to recall the complainant as a witness. since it is not a case of recalling the witness, the instant case is calling of the complainant as a witness because the power of attorney holder of the complainant has been examined, the complainant was not examined and the factual basis has been laid down by the accused-petitioner which shows that it was necessary to call the complainant as a witness.19. after going through the judgments and relevant provisions of law referred and discussed, i am of the firm opinion that the learned trial court has not considered the facts and also not appreciated the provisions of law as well as the law laid down by the supreme court and various high courts and wrongly rejected the application dated february 27, 1999. consequently, the order dated march 3, 1999, passed by the learned trial court deserves to be set aside and the same is set aside and the learned trial court is directed to summon the complainant as a witness and shall examine her and also give opportunity for cross-examination to the accused petitioner.20. in the facts and circumstances discussed hereinabove, the miscellaneous petition stands allowed with no order as to costs.