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CR.RA/462/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 462 of 2010
=========================================================
HRIM
FINEWEST PVT LTD & 2 - Applicant(s)
Versus
KISHORBHAI
NATVARBHAI VALA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
FB BRAHMBHATT for
Applicant(s) : 1 - 3.
None for Respondent(s) : 1,
MR KARTIK
PANDYA, APP for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 17/09/2010
ORAL
ORDER
The
petitioners are the original accused. They are challenging an order
dated 27.7.2010 passed by learned JMFC, Porbandar below application
exh.423 given by the petitioners.
To
appreciate the controversy it would be necessary to take note of few
facts.
2.1 Petitioners
are accused in case of dishonor of cheque punishable under Section
138 of the Negotiable Instruments Act. Complaint has been lodged by
respondent no.1 herein being Criminal Case No.8076/2002 which as
numbered itself suggests is pending before the learned Magistrate
since nearly eight years now.
2.2 Previously
original complainant has approached this Court by filing Special
Criminal Application No. 1200/2008 challenging order dated 3.6.2008
passed by the learned Magistrate by which request of the accused for
issuance of summons to 17 witnesses was granted. Before the Court it
was contended that such application has been filed with ulterior
motive. Irrelevant evidence is sought to be brought on record only
to delay the proceedings. On behalf of the accused, counsel appeared
before the High Court and submitted that some of the witnesses may
be dropped and petitioner may be informed in advance about those
witnesses who would be examined. In view of the above, Court passed
the following order :
3. In
view of above fair statement being made and recorded in the order,
present petition under Article 227 could not be pressed further for
the purpose of examination of merits of the impugned order in respect
of examination of each witness before the trial Court. Since the
parties have agreed to fully cooperate in the earliest possible
hearing and disposal of the main criminal case, and they have agreed
upon the outer limit of 31st December 2008 for the purpose
of concluding the evidence in defence, it is directed, by consent,
that the respondents shall conclude their evidence in defence latest
by 31st December 2008, regardless of any witness called by
summons or warrant attends the Court or not. It is further clarified
that the trial Court would be at liberty to conduct the proceedings
in accordance with law and may not permit any irrelevant,
impermissible or unnecessary material to be introduced in evidence.
Any objection of the petitioner in that regard may have to be
immediately heard and decided so as to facilitate conclusion of
evidence of the respondents within the aforesaid time limit. It was
agreed among the parties that the trial Court shall conduct further
proceedings of the criminal case, as far as practicable on day-to-day
basis in compliance with the provisions of Section 309 of the
Criminal Procedure Code and if any party appears to be unnecessarily
prolonging the proceedings or causing adjournment, appropriate order
as to cost may be made by the trial Court. It was agreed that in
case of witness, Mr.Kishorbhai N. Vala, who is recalled for
examination as a witness, re-examination and cross-examination shall
be restricted to the purpose for which he is recalled.
4. Subject
to abiding by the statements and observations recorded hereinabove,
the petition is disposed, Notice is discharged and interim relief is
vacated with no order as to costs.
It
is not in dispute that subsequent to said order dated 21.10.2008,
the petitioners completed recording of evidence on their behalf in
the year 2008 itself. It is also not in dispute that at one stage,
the case was kept for pronouncement of judgement. However, for some
reason certain issues cropped up again and the case was reopened.
The petitioners at that stage moved application exh. 360 before the
learned Magistrate and prayed for production of certain documents by
the complainant. On this application, learned Judge passed his order
on 26.2.2010 and directed the complainant to produce letter dated
11.1.2002 within 15 days.
3.1 Thereupon
complainant approached this Court again by filing Special Criminal
Application No.530/2010 challenging order passed by the Magistrate
below application exh. 360. He relied on the previous order of the
High Court dated 21.10.2008 whereby time limit was fixed by the
High Court for completion of the proceedings. High Court therefore,
while disposing of Special Criminal Application No.530/2010 by
order dated 30.3.2010 recorded as follows :
Inspite
of the above fact, under one or the other pretext the respondents
have preferred application for production of the documents which is
already taken or in existence of the record of the case. It is,
therefore, submitted that the trial court be directed to
expeditiously complete the proceedings of the pending criminal case.
In
view of the above, learned advocate for the petitioner submits that
either the order dated 26th February, 2010 below Exh. 360
in Criminal Case No. 8076 of 2002 will be complied with or
alternatively necessary steps will be taken to admit the document in
question which is already produced and exhibited on the record of the
case.
In
view of the above, no challenge to the impugned order survives and
considering the facts and circumstances of the case the trial court
is directed to comply with the directions issued by this Court in
Special Criminal Application No. 1200 of 2008 dated 21.10.2008 and
shall avoid unnecessarily prolonging the proceedings or adjourning of
the case without there being any just and right cause.
With
the aforesaid observations, this petition is disposed of.
It
is not in dispute that pursuant to order dated 30.3.2010, original
complainant had admitted the execution of the document. It is the
case of the petitioners that this is not sufficient compliance to
the assurance given to the Court on 31.3.2010 which is recorded in
the order. It is the case of the petitioners that not only the
documents but the contents thereof also must be admitted.
4.1 Petitioners
had also filed application exh. 417 and stated that the complainant
be directed to file specific affidavit admitting the contents of the
document as conveyed to the High Court. This application was
rejected by the learned Magistrate on 18.6.2010.
The
petitioners moved fresh application exh.423 and requested for
recalling of the complainant and one more witness under Section 311
of the Code of Criminal Procedure. This application came to be
turned down by the learned Magistrate by impugned order dated
27.7.2010 observing inter-alia that purpose of recalling of the
witness is not clarified. The petitioners are somehow trying to
delay the proceedings.
Learned
counsel for the petitioners vehemently contended that learned
Magistrate committed grave error in not allowing the application of
the petitioners. He contended that witnesses can be recalled at any
stage of the proceedings. Such recalling was essential in the
present case since complainant did not fulfill his promise made to
the High Court. It was therefore, necessary to prove the contents of
the documents that he may be recalled. He relied on the following
decisions of the Apex Court to contend that under Section 311of the
Code of Criminal Procedure, it is open for the Court to recall any
witness at any stage of the proceedings :
1)
Rajendra Prasad v. Narcotic Cell, through its officer in charge,
Delhi reported in 1999 Supreme Court Cases(Cri.)1062.
2)
P. Chhaganlal Daga v. M. Sanjay Shaw reported in (2003) 11
Supreme Court Cases 486.
3)
Himanshu Singh Sabharwal v. State of Madhya Pradesh and others
reported in (2008) 3 Supreme Court Cases 602.
4)
Mohanlal Shamji Soni v. Union of India and another reported
in 1991 Supreme Court Cases (Cri.) 595.
In
the present case, however, I find that facts of the case would not
permit me to interfere with the order of the learned Magistrate. As
already noted, the case is lingering since 2002. Petitioners were
given sufficient opportunity to defend themselves in past.
Complainant approached this Court in the year 2008 and complained of
accused protracting the trial. They had previously requested for
summoning 17 witnesses. Before High Court they agreed to drop those
witnesses who were not necessary upon which High Court in the year
2008 provided for a time limit to complete the proceedings.
Thereafter also proceedings went on unabated. The petitioners at a
later stage sought to prove letter dated 11.1.2002. At that stage,
once again complainant approached High Court . Before the High
Court to speed up the proceedings, his counsel agreed that he would
either admit the document or produce the original document. In
precise term he stated that either
the order dated 26th
February, 2010 below Exh. 360 in Criminal Case No. 8076 of 2002 will
be complied with or alternatively necessary steps will be taken to
admit the document in question which is already produced and
exhibited on the record of the case .
It
is the case of the petitioners that this assertion was not fulfilled
which necessitated their filing of fresh application first by
affidavit in clear terms. When such request was turned down by the
learned Magistrate, they had filed application exh. 423 for
recalling of the witnesses.
I
am of the opinion that complainant has in no way breached the
assurance given to the High Court. Before the High Court he only
agreed to either produce said document or admit said document (xerox
copy of which is already produced before the trial Court). He has
already admitted the document on affidavit. Such document is also
exhibited. He has thus fulfilled his promise. Case of the
petitioners is that he must admit the contents of the document. This
is not what his advocate had conveyed to the High Court . I do not
find the petitioner have made out any case for recalling of the
witnesses. They had at much belated stage thought of having document
exhibited long after they had closed their
defence. Such document is also exhibited. By virtue of this Court’s
order, affidavit of the complainant admitting such documents is
filed. I am therefore, in agreement with the view of the learned
Magistrate that petitioners are trying to delay the proceedings. No
case for interference is made out.
Petition
is therefore, dismissed.
(Akil
Kureshi,J.)
(raghu)
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