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HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan, J.
Arvind Kumar Sankhyan —Petitioner
versus
Dr. M.P. Vaidya and Ors. —Respondents
Cr. MMO No.387 of 2017
Decided on 20.12.2017
Counsel for the Parties:
For the Petitioner:Mr. Lalit K. Sharma, Advocate
For the Respondents: None
IMPORTANT POINT
Recall is not a matter of course and discretion given to Court has to be exercised judicially to prevent failure of justice.
Headnote:(A) Criminal Procedure Code, 1973—Section 311—Recall of witness—Section 311 Cr.P.C. has been enacted to enable Court to find truth and render a just decision whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceedings 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 already examined, who is expected to be able to throw light upon the matter in dispute—Object of provision as a whole is to do justice not only from point of view of accused and prosecution but also from point of view of an orderly society—Yet, this power has to be exercised only for strong and valid reasons that too with care, caution and circumspection—Recall is not a matter of course and discretion given to Court has to be exercised judicially to prevent failure of justice. (Para 10)
(B) Administration of Justice—Duty of Court—In administration of justice, Judges and Lawyers play equal roles—Like Judges, Lawyers must also ensure that truth triumphs in administration of justice—Truth is foundation for justice—It is incumbent upon all Judicial Officers to make an endeavour to ascertain truth in every matter and to leave no stone unturned in achieving this object. (Para 17)
Result: Application allowed.
JUDGMENT (ORAL)
Tarlok Singh Chauhan, J.—This petition under Section 482 of the Code of Criminal Procedure (for short ‘Code’) is directed against the order passed by the learned Sessions Judge on 21.08.2017 whereby he affirmed the order passed by the learned Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi, H.P. on 03.03.2016 rejecting the application filed by the petitioner/accused ( hereinafter referred to as ‘accused’) under Section 311 Cr.P.C.
2. The facts as are relevant for the instant lis are that a complaint under Section 138 of the Negotiable Instruments Act (for short ‘Act’) came to be filed against the accused on the ground that he had issued a cheque No.002263 dated 07.04.2011 drawn at HDFC Bank Branch Mandi, H.P. towards Account No. 730104000002073 amounting to Rs. 13,86,250. The complainant presented the cheque before his bank, but the same was dishonoured. Despite legal notice, the accused did not pay any heed to pay the aforesaid amount, constraining the complainant to file the complaint against the accused under the Act.
3. The defence of accused infact appears to be that he along with his two other shareholders namely Rajesh Kumar and Chandermani Thakur formed a Company under the name and style of ‘M/s Onam Stock Brokers Pvt. Ltd.’ under the Companies Act, 1956, wherein the share of the accused was only 1%. The Company was registered as sub-broker of ‘M/s Motilal Oswal Securities Ltd., Mumbai’ which is alleged to have been terminated in July, 2011. The original complainant M.P.Vaidya had opened a D Mat & Trading Account and Port Folio Management Services (PMS) account with ‘M/s Motilal Oswal Securities Ltd.’ through the Company and had invested Rs.15,00,000/-. However, since the stock market was witnessing huge volatility, the original complainant insisted for his payment and the accused in good faith issued the aforesaid cheque.
4. During the trial, the accused led evidence and examined Shri Shakti Gupta, Authorized Representative of ‘M/s Motilal Oswal Securities Ltd.’ as AW-1, who tendered documents Ex. AW 1/A to G. It is averred that it was on the basis of these documents that the accused, for the first time, came to know about the fate of the investment made by the original complainant, who infact had applied for termination and closure of the PMS account on 28.07.2011 immediately after instituting the instant complaint.
5. It was in this background that the accused filed an application under Section 311 Cr.P.C. for permitting him to recall the legal representatives of the deceased-complainant for re-cross-examination and to produce and prove the documents by which the original complainant had already applied for termination and closure of the PMS account. However, this application was rejected by the learned trial Magistrate on the ground that several opportunities had already been afforded to the accused to lead his evidence, but he failed to do so. The revision filed against the said order also came to be dismissed and that is how the matter is now before this Court.
6. It may be noticed that the respondents despite service have failed to put in appearance.
I have heard the learned counsel for the petitioner and have also gone through the material placed on record.
7. At the outset, this Court is firstly required to deal with the scope and ambit of Section 311 Cr.P.C. The provisions have been considered in detail by the Hon’ble Supreme Court in State of Haryana versus Ram Mehar and others (2016) 8 SCC 762: 2016(3) Crimes 388, wherein the entire law on the subject was discussed in detail in the following manner:-
“26. Having dwelled upon the concept of fair trial we may now proceed to the principles laid down in the precedents of this Court, applicability of the same to a fact situation and duty of the court under Section 311 CrPC. The said provision reads as follows:-
“311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, t
