IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH) Criminal Petition No. 255 of 2010 Smt Roltong Singpho, Wife of Sri C C Singpho, Proprietor of M/s RS Trading Company, Resident of Mudoi Village, P.O. : Innao, Diyun Circle, Dist.: Changlang ( Arunachal Pradesh). -Versus- - Petitioner. Sri Sajjan Kumar Agarwal (Goel), Son of Late Maniram Agarwal, Resident of Bordoloi Nagar, Tinsukia, Post Office and Police Station: Tinsukia, Dist.: Tinsukia, Assam. - Opposite Party. Advocates for the petitioner: Sri K Agarwal, Sri R J Baruah, Smt P Neog, Smt P Dutta, Sri S Prakash. Advocates for the respondent : Sri G N Sahewalla, Sr Adv. Sri P Bora, Sri Md Aslam, Sri B Sharma, Smt J Bora, PRESENT HON BLE MR. JUSTICE B D AGARWAL Date of hearing : Date of Judgment :

2 2 JUDGEMENT AND ORDER (ORAL) This application under Section 482 of the Code of Criminal Procedure, 1973, has been filed by the accused, assailing the order dated , passed by the learned Additional Chief Judicial Magistrate, Tinsukia, in Complaint Case No. 174 of 2003, as well as the Judgment and Order dated , passed by the learned Sessions Judge, Tinsukia, in Criminal Revision No. 66 (4) of 2009, rejecting the prayer of the accused to recall CW-1 for further cross-examination. 2. Heard Sri K Agarwal, learned counsel for the petitioner and Sri P Bora, learned counsel for the sole opposite party. I have also perused the impugned orders. 3. The case has arisen out of a complaint filed by the opposite party under Section 138 of the Negotiable Instruments Act, In the earlier round of litigation, the accused persons had filed a criminal petition praying for quashing of the proceeding and the said prayer was turned down by this Court as well as by the Hon ble Supreme Court vide order dated While dismissing the SLP, the Apex Court further directed the trial Court to decide the case expeditiously, preferably within a period of 4 (four) months. The expectation of the Hon ble Supreme Court for expeditious disposal of the case has not been fulfilled and the case is still squeezed in the midst of interlocutory petitions.

3 3 4. As could be gathered from the documents annexed with the Criminal Petition the affidavit evidence of CW-1 was filed on and additional evidence was tendered on and on that day, CW-1 was cross-examined. Thereafter, CWs-2 and 3 were examined and cross-examined on Exactly after 2 (two) months of cross-examination of complainant witnesses the accused No. 3/ petitioner filed a petition in the trial Court for recalling of CW-1 on various grounds and that petition was rejected on The said order of trial Court was assailed by way of filing statutory revision in the Court of learned Sessions Judge, Tinsukia, and the revision application also came to be dismissed on The said Judgment of the Sessions Judge has been assailed in this case under the garb of Section 482 CrPC. 5. It may also be mentioned here that the certified copy of the order dated was obtained on , but the Criminal Petition was filed in the High Court only on The reason for not filing the Criminal Petition promptly is that the petitioner was suffering from various ailments and was undergoing treatment. However, the nature of ailments and details of treatment have not been given in the criminal petition. A brief reference for delay in filing the criminal petition became necessary in the light of the directions of the Hon ble Supreme Court for expeditious disposal of the case. At this stage, it is also necessary to put on record that the petitioner was also reluctant to appear in the trial Court in person from the very beginning on the ground of her illness and

4 4 she was insisting her representation by a lawyer under Section 205 CrPC. After rejection of the said prayer the order of the trial Court was challenged in the Sessions Court and also in the High Court. Even after the High Court s order, the accused did not appear and finally, the matter was referred to the High court by the trial Magistrate. The reference application was decided on Before that, the Division Bench of this Court passed an interim order on , allowing representation of the accused by her counsel and only thereafter, the trial of the case proceeded. 6. Before giving any opinion about the legality and correctness of the impugned orders, it is necessary to refer to the Judgment of the Hon ble Supreme Court rendered in the case of Krishnan -Vs- Krishnaveni, reported in (1997) 4 SCC 241, wherein their Lordships have held that inherent powers conferred upon the High Court under Section 482 CrPC, should be exercised sparingly and cautiously. The relevant observations are reproduced below: The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397 (1). However,

5 5 when the High court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. 6.1 The aforesaid way of view has been reiterated in the case of Shakuntala Devi Vs- Chamru Mahto, reported in (2009) 3 SCC 310 and other Judgments. As noted earlier, the present criminal petition has been filed after dismissal of the statutory revision application by the petitioner. Under such circumstances, the High Court should take extra precaution to interfere in the discretionary powers of the trial Court to allow or reject re-cross-examination of the witnesses. 7. As could be gathered from the petition of the accused, re-examination of CW-1 was sought for on the ground that while giving his own deposition the complainant (CW-1) did not exhibit the deposit slips of the cheque in the UBI, Tinsukia Branch. The said deposit slips were brought on record as Exhibits 13 and 14 through CW-2, who is the Bank Manager of UBI, Tinsukia Branch. According to the petitioner, after bringing on record the Exhibits- 13 and 14, it became necessary to recross-examine CW-1 to ascertain the fact as to whether the disputed cheque was actually deposited by him in the Bank or by his Attorney. The other ground for re-summoning CW-1 was that, in another case, being Complaint Case No. 173 of 2003,

6 6 filed by the son of the complainant against the same set of accused persons, some documents have been brought on record, containing writing as well as signatures of the complainant and, as such, it has become necessary to re-cross-examine CW-1. It was also stated in the petition dated that in SLP (Criminal) No of 2008, arising out of Complaint Case No. 173 of 2003, the complainant has made certain statements on oath which are also relevant to decide the present complaint and as such, it has become necessary to re-cross-examine CW The aforesaid contention of the accused was repelled by the trial Magistrate, holding that Exhibits 13 and 14 (cheque deposit slips) were produced by the Bank officials and as such, all the issues pertaining to these documents should have been put to CW-2 and for this purpose further examination of CW-1 is not necessary. 9. With regard to the documents filed and statements made in CR Case No. 173 of 2003 and SLP No of 2008, the learned Magistrate has observed that those cases are based on altogether different facts and as such, re-cross-examination of CW-1 is not advisable under Section 311 CrPC. The same view has been reiterated by the learned Sessions Judge. It is true that in Paragraph- 7, the learned Sessions Judge has observed that the signatures on the deposit slips are the signatures of the complainant and this observation has been objected by the learned counsel for the petitioner. In my considered opinion, the question as to who deposited the cheque

7 7 in the Bank under Exhibits 13 and 14, would be decided during the trial. In other words, the observation of the Sessions Court is superfluous and obiter can be ignored by the trial Court. 10. There is no dispute that a trial Court has plenary jurisdiction and powers to summon any person as a witness or examine any person in attendance or recall and re-examine any witness, already examined earlier and this power can be exercised at any stage of the trial. The object underlying Section 311 is that there may not be failure of justice by not bringing valuable evidence on record. At the same time, before invoking discretionary powers under Section 311 CrPC, it should appear to the Court that such examination or re-examination of a witness is essential for just decision of the case by getting all relevant and necessary evidence before it. 11. In the present case, the trial Magistrate has held that re-cross-examination of CW-1 is not necessary since the documents have been brought on record through CW-2. I would like to add that, while giving affidavit evidence the complainant (CW-1) had categorically claimed that the cheque was presented by him in the Bank and this statement was not assailed in the cross-examination. At the same time, CW-2 has admitted in the cross-examination that he cannot say who deposited the cheque in question, vide Exhibits 13 and 14, and has further deposed that Exhibits 13 and 14 were not signed by the same person. In my considered opinion, it would not be just and proper to

8 8 express any opinion with regard to the statements made by the witnesses. Any discussion on the merit of the case would amount to encroaching the jurisdiction of the trial Court. I am also not expressing any view as to what would be the implication of depositing a cheque in the Bank by any person other than the drawee. 12. As a whole, I agree with the view taken by the Courts below that it is not a fit case to re-examine CW-1, to ascertain as to who had deposited the cheque in Bank. If the accused has a specific defence in this regard he can adduce evidence. In this way, the petitioner has alternative remedy to prove that the cheque was not deposited by the complainant himself by giving defence evidence. Similarly, the plea of the accused that re-cross-examination of CW-1 is necessary due to certain statements made in the Complaint Case No. 173 of 2003 and SLP No of 2008, is also not convincing. In the petition, the accused has not elaborated as to what statements and documents are necessary to be brought on record. Admittedly, the above 2 (two) cases are based on different facts and arising out of different cheques. 13. For the foregoing reasons, I hold that this Criminal Petition is bereft of any merit. I also agree with the view taken by the learned Sessions Judge that the petition for recalling CW-1 has been filed with an oblique motive to delay the disposal of the case. Consequently, the Criminal Petition stands dismissed with cost of Rs. 5,000/- (Five thousand only). The petitioner is

9 9 directed to deposit the cost in the trial Court, within a period of 4 (four) weeks from today and on such deposit, the cost amount shall be paid to the complainant. 14. The stay order dated , stands vacated. dtg JUDGE