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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Arvind Kumar Sankhyan - Appellants
Vs.
M.P. Vaidya and Ors. - Respondents
Cr. MMO No. 387 of 2017
Decided On : 20-12-2017
Section 311 Cr.P.C. - Negotiable Instruments Act - 138 - The court discussed the scope and ambit of Section 311 Cr.P.C. and referred to various precedents to establish the principles governing the exercise of power under this section. The court emphasized that the power under Section 311 should be exercised judiciously and for strong and valid reasons, ensuring that the judgment is not rendered on inconclusive or speculative presentation of facts. The court also highlighted the need for fair play and good sense in exercising this discretionary power, and cautioned against using it to fill up lacunae in the prosecution's case or to cause prejudice to the accused. The judgment emphasized that the paramount requirement is a just decision and that the power under Section 311 should be invoked only to meet the ends of justice. The court also underscored the importance of ensuring fair trial and the interest of the accused, the victim, and the society. The judgment ultimately set aside the orders of the lower courts and allowed the application under Section 311 Cr.P.C.
Fact of the Case:
A complaint under Section 138 of the Negotiable Instruments Act was filed against the accused for dishonouring a cheque. The accused sought to recall witnesses to produce documents showing the complainant's termination and closure of the Portfolio Management Services (PMS) account, which was rejected by the trial Magistrate and affirmed by the Sessions Judge. The accused then filed a petition under Section 311 Cr.P.C. to recall witnesses for re-cross-examination and to produce and prove the documents.
Finding of the Court:
The court found that the reasons assigned by the lower courts for rejecting the application under Section 311 Cr.P.C. did not withstand judicial scrutiny and were set aside. The application was allowed, emphasizing the need for fair trial and the quest for truth in the administration of justice.
Issues: The main issue revolved around the rejection of the accused's application under Section 311 Cr.P.C. to recall witnesses for re-cross-examination and to produce and prove documents, and the subsequent appeal against the rejection.
Ratio Decidendi: The court's analysis focused on the principles governing the exercise of power under Section 311 Cr.P.C., emphasizing the need for just decision, fair play, and good sense in invoking this discretionary power. The court underscored the importance of ensuring fair trial and the interest of the accused, the victim, and the society, and ultimately set aside the orders of the lower courts and allowed the application under Section 311 Cr.P.C.
Final Decision: The judgment set aside the orders of the lower courts and allowed the application under Section 311 Cr.P.C., emphasizing the need for fair trial and the quest for truth in the administration of justice.
Tarlok Singh Chauhan, J.
1. 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 v. Ram Mehar and others, (2016) 8 SCC 762, 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, trial or other proceeding un
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