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2013 Supreme(HP) 785
HIGH COURT OF HIMACHAL PRADESH
KULDIP SINGH, J.
RAM KRISHAN - Appellant
VERSUS
RAMESH KUMAR - Respondents
Cr.MP No.179 of 2013
Decided On : October 25, 2013
Advocate Appeared:
G.D.VERMA, B.C.VERMA, TARLOK CHAUHAN, VIJAY CHAUDHARY
The judgment emphasizes the limitations on recalling orders and the futility of making repetitive applications under the Code.
Headnote:
Negotiable Instruments Act - Recall of Orders - Section 138, Section 142 of the Negotiable Instruments Act, 1881, Section 311 of the Code of Criminal Procedure, 1973, Section 91 of the Code - [Section 138, Section 142, Section 311, Section 91]
Fact of the Case:
The accused filed applications to recall orders related to cross-examination and summoning of an agreement in a case under the Negotiable Instruments Act. The trial court dismissed the applications, leading to the present appeal.
Finding of the Court:
The court found that the accused failed to establish grounds for recalling the orders and that the application under Section 91 of the Code was an exercise in futility.
Issues: The issues revolved around the recall of orders related to cross-examination and summoning of an agreement, as well as the interpretation of relevant legal provisions.
Ratio Decidendi: The court held that the orders could not be recalled based on the grounds presented by the accused and that the application under Section 91 of the Code was without merit.
Final Decision: The court dismissed the appeals and directed the parties to appear in the trial court.
1. KULDIP Singh This judgment shall dispose of Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012 as common and overlapping questions of law are involved in both the matters. Whether the reporters of the local papers may be allowed to see the Judgment? Yes
2. THE relevant facts, in brief, are that respondent/complainant Ramesh Kumar filed a complaint under Section 138 readwith Section 142 of the Negotiable Instruments Act, 1881, against petitioner/accused Ram Krishan. In the complaint, accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 ( for short 'Code') to recall for cross -examination complainant along with original agreement executed probably on 18.08.2010 in respect of apple crop of complainant purchased by accused. This application was dismissed by trial Magistrate on 05.12.2011. The accused filed Cr.MMO No.8 of 2012 under Article 227 of the Constitution of India read with Section 482 of the Code and assailed order dated 05.12.2011. Cr.MMO No.8 of 2012 was dismissed on 13.01.2012. The accused has filed Cr.MP No.179 of 2013 under Article 227 of the Constitution of India readwith Section 482 of the Code for recalling order dated 13.01.2012 passed in Cr.MMO No.8 of 2012.
After the decision of Cr.MMO No.8 of 2012, accused moved another application under Section 91 of the Code for summoning agreement in dispute. This application was opposed by the complainant. The trial Court on 27.03.2012 dismissed the application with the observation that the application has been moved on behalf of the accused just to linger on the proceedings and, therefore, the trial Court imposed costs Rs.500/ - to be paid by the accused to the complainant. The order dated 27.03.2012 has been assailed in Cr.MMO No.68 of 2012.
3. I have heard learned counsel for the parties. On behalf of petitioner/complainant, learned Senior Advocate has submitted that on 13.01.2012, true, correct facts were not brought to the notice of this Court which led to dismissal of Cr.MMO No.8 of 2012 on 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. In Cr.MMO No.68 of 2012, it has been argued by learned Senior Advocate that under Section 91 of the Code, the Court is competent to summon the agreement in question from the complainant in order to determine the real controversy. The Court below has misconstrued and misinterpreted the statement of complainant. The learned Senior Advocate has relied Rafiq and another versus Munshilal and another AIR 1981 SC 1400, Kunjuvarkey versus State of Kerala 2001 (2) All India Criminal L.R. 778, H.R.Shetty and others versus Titas Farnandes 2003 CRI.L.J. 1383, Trilok Singh versus State of Himachal Pradesh 2004 CRI.L.J.3134 (HP), State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 in support of his submissions.
4. THE learned counsel for the complainant has submitted that the accused moved an application under Section 311 of the Code which was dismissed by the trial Magistrate on 05.12.2011, Cr.MMO No.8 of 2012 in which order dated 05.12.2011 was assailed has already been dismissed. The order dated 05.12.2011 cannot be modified, reviewed, recalled in view of Section 362 of the Code. The accused moved another application under Section 91 of the Code to achieve the same purpose for which application under Section 311 of the Code was filed unsuccessfully, but said application has also been rightly dismissed by the trial Magistrate on 27.03.2012. The learned counsel for the complainant has defended orders dated 13.01.2012 and 27.03.2012. In support of his submissions, he has relied Santosh Kumar Ganguly and another versus Registrar, Appellate Side, High Court, Calcutta and another AIR 19
