Praveen Jain v. Naresh Kumar Goel

1. By this petition under Section 482 of Cr. P.C. petitioner seeks to challenge the order dated 15th April 2013 passed by the learned Metropolitan Magistrate thereby dismissing the application moved by the petitioner under Section 311 of the Cr. P.C.

2. Learned counsel for the petitioner submits that the learned Metropolitan Magistrate failed to appreciate the fact that the petitioner – accused appointed a new counsel who after having gone through the case file found that the earlier counsel had not taken proper steps to summon a witness so as to prove the fact that the accused had never received any legal notice prior to the institution of the complaint case by the respondent under Section 138 of Negotiable Instruments Act, 1881. Learned counsel for the petitioner also submits that the AD Card did not bear the signatures of the petitioner and therefore examination of the hand-writing expert was necessary to disprove the signatures of the 2013:DHC:2448 Crl. Rev. P. No. 283/2013Page 2 of 5 petitioner on these cards. Based on these submissions, learned counsel for the petitioner prays that the petitioner be given an opportunity to examine the hand-writing expert to disprove his signatures on the AD Cards.

3. I have heard learned counsel for the petitioner.

4. The application under Section 311 Cr.P.C. was moved by the petitioner before the trial court when the matter was fixed for final arguments. Through the said application, petitioner sought re-opening of the evidence of the accused and for producing the hand writing expert for verifying the signatures of the accused on the AD cards.

5. The only reasoning given by the petitioner to re-open the said evidence of the accused was that he had engaged a new counsel who after having gone through the case file found some lacunae and shortcomings in proving the defence of the petitioner, for which the previous counsel appearing for the accused was responsible.

6. No doubt, Section 311 of the Cr. P.C. is a salutary provision to be invoked by the court wherever the court finds it necessary to summon any person or recall or re-examine the person already examined for the just decision of the case, but at the same time, the provision of Section 311 of Cr. P.C. should not be invoked for filling up the lacunae either by the prosecution or by the defence or for giving an unfair advantage to the rival side. The power under Section 311 of Cr. P.C. is to be exercised Crl. Rev. P. No. 283/2013Page 3 of 5 only under the exceptional circumstances where the court finds that the recall or re-examination of any witness is necessary for the just decision of the case. No straight jacket formulae or principles can be laid down in this regard as the ultimate parameter is the just decision of the case and it is for the court to see in the facts of each case whether to invoke such powers, irrespective of the stage of the case.

7. Examining the scope of section 311 Cr. P.C., the Apex Court in MohanlalShamjiSoni v. Union of India, AIR 1991 SC 1346 observed that “Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence Crl. Rev. P. No. 283/2013Page 4 of 5 of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.”

8. Having said so, in my view, the learned Trial Court had rightly recorded that the engagement of new counsel is neither a cause nor the ground for re-opening of the defence evidence and if the witnesses are allowed to be recalled on such grounds, there would be no finality to trial of any case. Learned Trial Court also observed that the accused in the present case was examined under Section 313 of Cr. P.C. vide order dated 14th March 2008 and thereafter a number of opportunities were given to the accused to lead defence evidence, which was ultimately closed vide orders dated 26th September 2011 and thereafter, the case was fixed for final arguments.

9. This court therefore does not find any illegality or infirmity in the order dated 15th April 2013 passed by the learned Metropolitan Magistrate.

10. This court accordingly endorses the view taken by the Trial Court that the engagement of new counsel will not afford any sufficient ground for the accused to re-examine the accused and for producing the handwriting expert to disprove his signatures on the AD Cards when the petitioner had closed his evidence on 26th September 2011. Crl. Rev. P. No. 283/2013Page 5 of 5

11. Finding no merits in the present petition, this petition is hereby dismissed.

12. It is ordered accordingly.. KAILASH GAMBHIR, J MAY 10, 2013 pkb