Criminal Misc. No. M-8518 of 2009 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Misc. No. M-8518 of 2009
Date of Decision: 2.4.2009
Kashmir Singh
...Petitioner
Versus
M/s Preet Hire Purchase and Leasing Corporation
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Mandeep S. Sachdev, Advocate
for the petitioner.
Mr. Vijay Lath, Advocate
for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C.
seeking quashing of order dated 25.2.2009 (Annexure P1) whereby the
Additional Sessions Judge, Jalandhar, had declined the application filed
by the petitioner under Section 391 Cr.P.C. to recall Manmeet Singh,
partner of the complainant firm for further cross-examination.
Briefly stated that complainant-respondent had filed a
complaint under Section 138 of the Negotiable Instruments Act against
the petitioner on the ground that loan raised by the petitioner in cash has
not been returned and in discharge of the loan, petitioner had issued a
cheque which had bounced on the ground that funds were insufficient.
The complainant had led preliminary evidence. Petitioner was
Criminal Misc. No. M-8518 of 2009 2
summoned to stand trial.
The trial concluded. The petitioner/appellant was convicted.
Before the Appellate Court, an application was filed under Section 391
Cr.P.C. that Manmeet Singh be recalled for further cross-examination in
order to ascertain whether complainant-firm was registered under the
Punjab Money Lenders Act or with the Reserve Bank of India or not. It is
stated that firm of Manmeet Singh was not competent to give cash loan,
therefore, any loan given by them without being registered under the
Punjab Money Lenders Act or with the Reserve Bank of India will not be
legally enforceable debt. The application was declined by the Appellate
Court because in the reply filed to the application, Manmeet Singh has
admitted that his firm is neither registered under the Punjab Money
Lenders Act or with the Reserve Bank of India, consequently, its effect
shall be seen and examined during the course of arguments.
I have heard counsel for the parties.
Admittedly, accused had drawn a cheque. The cheque had
bounds. There is always presumption in favour of the holder of the
cheque that the cheque was issued for discharge of liability or debt. This
presumption was to be rebutted by the accused. No such effort was
made by the accused. It is too late in the day in the appeal to file an
application that the witness be recalled for cross-examination. Once it
has been stated in the application that the firm was neither registered
under the Punjab Money Lenders Act nor with the Reserve Bank of
India, its effect will be examined by the Appellate Court during the
course of arguments.
Counsel for the petitioner has relied upon State of Gujarat v.
Criminal Misc. No. M-8518 of 2009 3
Mohanlal Jitamalji Porwal and Another FIR 1987 Supreme Court
1321 to urge that application filed under Section 391 Cr.P.C. cannot be
rejected on ground of delay.
Delay and necessary for cross-examination are two different
things. Application cannot be used as a tool to delay the proceedings. If
a delay is justifiable, the Court will always come to the rescue of any
party as the journey of the Court is to find truth. Therefore, no benefit
can flow to the petitioner from Mohanlal Jitamalji Porwal’s case
(supra).
Counsel for the petitioner has further relied upon Zahira
Habibulla H. Sheikh and Another v. State of Gujarat and Others
2004(2) Recent Criminal Reports 836 which is known as Best Bakery
Case to say that when circumstances indicate substance in application
for adducing additional evidence, the Courts should not foreclose the
same.
In the present case, petitioner has miserably failed to prove
such circumstances exist in his favour.
No merits dismissed.
Nothing stated above shall be construed as expression of
opinion on the merits of the case. However, the petitioner is relegated to
the liberty to take all arguments before the Appellate Court.
(Kanwaljit Singh Ahluwalia)
Judge
April 2, 2009
“DK”