Desh Deepak Sharma & Anr. v. Harsh Khosla

1. By this petition the Petitioners seek quashing of order dated 24th August, 2011 passed in Crl. Complaint No. 58911/10 titled as Harsh Khosla vs. Desh Deepak Sharma under Section 138 Negotiable Instruments Act,

1881.

2. By the application leading to the passing of impugned order, the Petitioner had inter alia stated that in the pre-charge evidence the Complainant has examined CW[1] Harsh Khosla and CW[2] Ashok Malhotra. CRL.MC. 299912011 2_ -'• ·-.-! 2011:DHC:12524 After framing of charge the Complainant tendered himself for crossexamination and was cross-examined on 3rd June, 2011, 4th June, 2011 and lih July, 2011. The case was fixed for further cross-examination on 1st August, 2011 when instead of tendering himself for cross-examination the Complainant made a statement that he does not want to lead further evidence and as such the Complainant's evidence was closed. The contention of the learned counsel for the Petitioner is that in view of the statement of the learned counsel closing the evidence there is no evidence on record and as such no occasions arises to record the statement of the accused under Section 313 Cr.P.C., thus the complaint was liable to be dismissed and case should be fixed for final arguments.

3. Learned Trial Court while dismissing the application of the Petitioner observed that as per the contention of the Complainant/non-applicant the accused persons, that is, the Petitioners have clearly admitted the evidence led by the Complainant as CWl Harsh Khosla and CW[2] Ashok Malhotra at the stage of post charge evidence in Para-3 of the application. Further after the charges were framed on 4th March, 2011 the matter was fixed for post charge evidence on 9th March, 2011. CW[2] remained present on 16th March, 2011, 1i 11 March, 2011, 26th March, 2011, 31st March, 2011 and gth June, CRL.M.C. 2999/2011 --!;-! 2011 for his cross-examination. The accused persons cross-examined the Complainant, that is, CWI, partly on 3rd June, 2011, 4th June, 2011 and Ii11 July, 2011. After framing of the charge, adjournments were sought on a number of occasions by the accused persons, that is, on 9th March, 2011, 16th March, 2011, 1i 11 March, 2011, 26th March, 2011, 3rd June, 2011 and 4th June, 2011 for cross-examination of the Complainant's witnesses. Despite costs being imposed on the accused persons several adjournments were sought. Learned Trial Judge was clearly ofthe opinion that it was not a case wherein it can be said that there is no evidence on record and thus the accused person should be discharged and the application was filed just to delay the trial. Thus the application was dismissed.

4. The present is a petition under Section 482 Cr.P.C. Section 482 Cr.P.C. has to be used sparingly in a case where there is either an abuse of the process of the Court or the interest of justice so warrants. The power under Section 482 Cr.P.C. cannot be used to control the day-to-day proceedings held by the learned Trial Court.

5. Hon'ble Supreme Court in State ofKarnataka v. M Devendrappa and another, (2002) 3 sec 89 held as under:- "6. Exercise of power under Section 482 of the Code in a case ofthis nature is the exception and not the rule. The CRL.M C. 2999/2011 Page 3 of[4] l -··'• -' section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse ofthe process of court, and (iii) to otherwise secure the ends ofjustice... "

6. In the present case the learned Trial Court was prima facie of the opinion that in view of the admission of the accused there is evidence on · record. Hence whether statement under Section 313 Cr.P.C. is to be recorded or not will have to be considered by the learned Trial Court after looking into the entire evidence on record and taking a decision thereon. The accused at this stage cannot dictate the learned Trial Court by moving an application to discharge as no evidence is available on record. Even this Court at this stage will not appreciate the evidence and come to the conclusion either way, whether there is evidence on record or not which warrants recording of the statement under Section 313 Cr.P.C. of the accused.

7. The petition is misconceived and is thus liable to be dismissed.

8. Petition and application are dismissed. ~TAGUPTA,J. SEPTEMBER 15, 2011 'vn' CRL.M. C. 2999/2011 Page 4 of[4] s - ·---'- '- --'~;-!