Arvind Singh @APPELLANT@Hash Dinesh Chand Gupta

By this common order, as prayed by the learned counsel for the parties, four petitions between the same parties, bearing Nos. SBCRLMP No. 3386,

3383, 3384 and 3385 of 2018 shall be decided together.

Briefly stated, Arvind Singh had issued cheques in favour of respondent complainant. The said cheques on presentation had bounced, resultantly after

issuing statutory notice, the respondent/complainant Dinesh Chand Gupta filed two separate complaints in respect of cheques, which have bounced.

So far present four petitions are concerned, they are in respect of Criminal Case No. 169A/2017 and Criminal Case No. 170A/2017. Both the criminal

cases are titled as Dinesh Chand Gupta vs. Arvind Singh. In both the above criminal cases, the complainant alongwith complaint filed affidavit

alongwith documents. The trial court after taking cognizance in the complaint, took affidavit filed by the complainant on record as evidence of the

complainant being examination-in-chief. However, due to inadvertence on the part of the court, documents could not be assigned exhibits. The trial

court in the similar two impugned orders both dated 20.2.2018 passed separately in Criminal CaseNos. 169A/2017 and 170A/2017 respectively

observed as under:-

“ijUrq U;k;ky; ls lgou ls ftjg iwoZ nLrkots izn’kkZfadr djus ls jg x;s gSA (emphasis supplied) vr% izkFkZuki= Lohdkj fd;k tkrk gS ,ao lk{;

ifjoknh esa izLrqr 'kiFk i= ds vuqlkj nLrkost ij izn’kZ vafdr fd;s tkus dh vuqefr nh tkrh gSA vkns’k lquk;k x;kA â€​

After hearing the learned counsel for the parties, this Court is of the view that exhibits could not be assigned due to over sight on the part of the court.

Therefore, impugned order assigning exhibit to the documents which were already available on the record will not amount to filling lacuna but

correcting an error so far prayer of the complainant is concerned.

Supreme Court in the case of Rajendra Prasad vs. Narcotic Cell reported in (1999) 6 SCC 110, dealing with as to what is mistake, over sight or

lacuna, has held as under:-

“7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311

of the Code or under Section 165 of the Evidence Act by saying that the Court could not “fill the lacuna in the prosecution caseâ€. A lacuna in

prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or

in eliciting relevant answers from witnesses. The adage `to err is human' is the recognition-of the possibility of making mistakes to which humans are

proved. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of

it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable

lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on

record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is

administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed

better.â€​

Since the trial court due to inadvertence failed to assign exhibits to the documents which were part of the record, an error has been corrected vide

impugned order. This Court cannot become oblivious of the fact that while statement of the complainant was being recorded, documents were not

assigned exhibits. Therefore, no interference is warranted as the court can correct error on its part at any stage, even at the stage when cases are

fixed for advancing arguments by the learned counsel for the parties.

Consequently, SBCRLMP No. 3386/2018 pertaining to Criminal Case No. 169A/2017 and SBCRLMP No. 3385/2018 in respect of Criminal Case No.

170A/2017 are dismissed being devoid of merits.

The learned counsel for the petitioner has rightly submitted that since documents were not assigned exhibits, defence counsel as a matter of strategy

had not questioned the complainant regarding the contents of documents.

Mr. RN Mathur, the learned Senior Counsel on instructions from Mr. PC Verma, has specifically stated at Bar that no cross-examination was

extended qua documents which have been assigned exhibits at the stage of final arguments.

Considering the order which this court propose to pass, issuance of notice upon the complainant-respondent is dispensed with as issuance of notice will

further delay the proceedings and the petitioner will succeed in his game plan to delay the proceedings. Furthermore, the complainant will be fastened

with unnecessary cost and litigation expenses.

To balance the equities and to ensure fair trial, it is ordered that the trial court in respect of documents to which exhibits have been assigned, shall

afford one opportunity to the petitioner to cross-examine the complainant regarding contents of documents only. The trial court as per its convenience

and calendar shall recall the complainant for cross-examination to the limited extent qua the documents to which exhibits have been assigned at the

stage when case was fixed for arguments.

It is made implicit clear that the trial court on the date complainant is present for further cross-examination, shall conclude the same as this court has

afforded only one opportunity to the accused-petitioner. It is further ordered that in case due to paucity of time the court is not able to conclude the

crossexamination on the same day, the court shall fix the case on the next day.

After cross-examination to above effect is extended, if required, the court shall record the additional statement of accused under Section 313 Cr.P.C.

The above order has been passed being conscious that the trial is at the fag end, arguments are being addressed but since the court has assigned

exhibits to correct inadvertence or error on its part, it was necessary to ensure fair play and balance the equities.

As a result of above, SBCRLMP No. 3383 pertaining to Criminal Case No. 170A/2017 and SBCRLMP No. 3384/2018 in respect of Criminal Case

No. 169A/2017 stand disposed of.

A further direction is issued to the trial court to conclude proceedings within one month from the date of receipt of certified copy of this order.