Criminal Misc. No. M-11967 of 2010 v. M/s Ganesh Rubber Industries S-321, Industrial Area, Jalandhar City

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Kumar Bakshi, Advocate, for the petitioners. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the order dated 18.03.2010, passed by the Judicial Magistrate 1st Class, Jalandhar, in Complaint No. 788/2/05 dated 04.10.05, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only) read with Section 420 IPC, vide which, the application, under Section 311 Cr.P.C. (Annexure P3), for recalling the complainant, for cross-examination, was dismissed, has been filed by him (petitioner). Criminal Misc. No. M-11967 of 2010 2

2. A criminal complaint, under Section 138 of the Act, read with Section 420 IPC, was filed, against the petitioner, as the cheque, bearing No. 240714, dated 30.08.05, in the sum of Rs. 13,43,854/-, issued by petitioner No. 2, on behalf of petitioner No. 1, in favour of the complainant, in the discharge of his legally enforceable liability was dishonoured.

3. The complainant was examined and cross-examined. He also closed his evidence, and the statement of the accused under Section 313 Cr.P.C., was recorded.

4. Later on, an application, was filed, by the petitioner, that, in the Civil Suit, the complainant, made a statement, that it was only a friendly loan, and, he (complainant) be recalled for further cross- examination, so as to confront him with his statement, made in the Civil Suit. That application, was dismissed, by the Court below, vide the order impugned.

5. Feeling aggrieved, the instant petition, has been filed, by the petitioners.

6. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully.

7. The Counsel for the petitioners, submitted that, no doubt, the complainant, had already been examined and cross-examined, yet, the Court, could recall any witness, at any time, with a view, to enable the accused, to confront him with his statement, which was made, by him, subsequently in any proceedings. He further submitted that the recall of the complainant, was essential, for the Criminal Misc. No. M-11967 of 2010 3 just decision of the case and to do complete justice. He also placed reliance, on Dinesh and others Vs. State of Haryana and others, 2008(1), RCR (Criminal), 128, and, Balwinder Singh Vs. State of Punjab and others, 2010(1), RCR (Criminal), 909, in support of his contention. He further submitted that, the order, being illegal, is liable to be set aside.

8. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The complainant, concluded his evidence, on 14.03.07. The statement of the accused, under Section 313 Cr.P.C., was recorded, on 04.06.07. When the case, was fixed, for defence evidence, the application for recalling the complainant for confronting him with his subsequent statement, made in the Civil Suit, was filed. It may be stated here, that the criminal complaint, under Section 138 of the Act, is required, to be proved, on the basis of the independent evidence, led therein. A criminal case, is required, to be proved, beyond a reasonable doubt. It was the case of the complainant, right from the very beginning, that the cheque, aforesaid, was issued, by the accused, in the discharge of his legally enforceable liability, and, when the same, was presented, it was dishonoured, forcing him, to file the complaint. The perusal of Annexure P2, the statement, which was made by the complainant, in the Civil Suit, clearly goes, to show, that Rakesh Mago, petitioner No. 1, the sole proprietor of petitioner No. 2, was given a loan of Criminal Misc. No. M-11967 of 2010 4 Rs. 13,43,854/-, at the instance of a friend. Rakesh Mago, also agreed to pay interest, on this loan. He also stated that he was having friendly relations with Rakesh Mago. As stated above, it was only a loan, on interest, which was given, to petitioner No. 2. Even a friend, can obtain a loan, on interest, from his friend. Such a loan, cannot be said to be a friendly loan. Under these circumstances, no ground, whatsoever, was made out, for recalling the complainant, for confronting him, with his statement (Annexure P2). The trial Court, was also right, in holding so. In Dinesh and others' case (supra), the evidence, was closed, and the arguments were heard, when an application, was moved, by the prosecution, to examine an additional witness, the application, was allowed. It was, under these circumstances, held that, the Court, has power, to summon or recall any witness for further examination or cross-examination. In Balwinder Singh's case (supra), it was also held, that discretionary power, under Section 311 Cr.P.C., could be exercised, even after the close of the evidence, and before the pronouncement of judgement. There is, no dispute, with the proposition of law, laid down, in the aforesaid cases. However, in the instant case, there was no justification, whatsoever, for recalling the complainant, for further cross-examination, in view of the statement, Annexure P2, referred to above. Recall of the complainant for further cross-examination, was neither, in the interest of justice, nor for the purpose of doing complete justice. The trial Court, was, thus, right in dismissing the application. Criminal Misc. No. M-11967 of 2010 5

9. For the reasons, recorded above, Criminal Misc. No. M- 11967 of 2010, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

17.05.2010 Amodh (SHAM SUNDER) JUDGE