Harmaljit Kaur vs Swaran Seth

Dr. (Mrs.) Sarojnei Saksena, J.

Petitionercomplainant has filed this revision against impugned order dated 18.2.1998 whereby she has not been allowed to adduce additional evidence to prove the date on which statutory notice sent by her was served on the respondentaccused.

Brief facts of the case are that the complainant filed a complaint under Section 138, Negotiable Instruments Act (in short the `Act'') on the allegation that the accused in due discharge of her financial liability issued a cheque for an amount of Rs. 2 lacs in her favour. When the cheque was presented for encashment in the bank, it was dishonoured due to insufficient funds in the account of the accused. Thereafter complainant sent a legal notice to the respondentaccused to pay the amount within 15 days of the receipt of notice. This notice was sent on 6.10.1995. When the complaint was filed its postal receipt UPC receipt and AD receipt were also filed along with the complaint. Since the accusedrespondent failed to pay the amount of Rs. 2 lacs to the complainantpetitioner she filed this complaint under Section 138 of the Act on 15.11.1995.

Complainants preliminary evidence was recorded and on being satisfied, that there is a prima facie case, accusedrespondent was summoned to face the trial. The whole of the evidence was recorded in the complaint case. Accused was examined under Section 313, Cr.P.C. Accused herself entered the witness box and was examined in her defence. The case was adjourned for hearing final arguments. Arguments were partly heard. At that stage, accusedrespondent filed an application under Section 245 Cr.P.C. to discharge her alleging that the complaint is not maintainable as complainant has not complied with the provisions of Section 138 of the Act. Thereafter, the complainant filed an application under Section 311 Cr.P.C. and sought permission that she be allowed to examine SubPostmaster Post Office, Sector 15, Chandigarh to prove the date on which the notice dated 6.10.1995 sent by her to the accused was servied on her. This application was declined by the impugned order.

The respondent's learned Counsel raised a repliminary objection that since her petition filed under Section 311, Cr.P.C. was dismissed by the impugned order, this order is not revisable under Section 397 subclause (2) Cr.P.C. To support this contention he has relied on, Brij Mohan v. State of Haryana and another, 1987(2) CLR 550; and V.P. Gureja v. Jagdish Chander Raheja, 1988(2) RCR 179.

The respondent's learned Counsel vehemently argued that complainant cannot be allowed to fill up the lacuna in her evidence, which she now intends to do by filing such an application. She ought to have examined such a witness earlier when her evidence was being recorded. In support of this contention, the respondent's learned Counsel has placed reliance on Madanjit Singh v. Baljit Singh, 1997(2) RCR 808.

To look into the documents, the lower Court's record was summoned. With the help of both the learned Counsels, I have perused the record minutely. The AD receipt bears the date 31.10.1995 below the signature of the accused. In the complaint, the complainant has not mentioned as to on which date this notice dated 6.10.1995 sent by her was received by the accused. The complaint was filed on 15.11.1995. Even in her preliminary evidence the complainant has not stated so. The accused filed an application under Section 245, Cr.P.C. praying that the complaint is not maintainable and she be discharged. In that application she has not mentioned that she received this notice on 30.10.1995 therefore this complaint filed on 15.11.1995 under Section 138 of the Act is premature. When she was examined under Section 313, Cr.P.C. such a plea was not raised. She herself entered the witnessbox but even on oath she never said that she received this notice on 31.10.1995. Only during arguments such an objection was raised.

The complainant filed this application on 17.12.1997 wherein she has specifically averred that when she filed the AD receipt in the Court along with her complaint it was not bearing any date, during the pendency of the trial the accused has tampered with the registered AD receipt and has written the date 31.10.1995 thereon to show that her complaint is premature. Thus according to her since the judicial record has been tampered with by the accused she sought an opportunity to examine SubPostmaster, Post Office 15, Chandigarh to prove as to on which date the notice dated 6.10.1995 sent to respondentaccused was served on her.

The accusedrespondent submitted reply to this petition and simply denied the averments made in the petition. In reply to para 4 of the petition, the accusedrespondent has simply alleged that the contents of this para are wrong, vague, concocted and hence denied. According to her, the original documents were with the complainant before she filed the complaint. When she filed these documents along with her complaint, since then they are in the judicial record. She has not specifically denied that she has tampered this document.

No doubt, it is settledlaw that no party can be allowed to fill in lacuna in the evidence under the garb of filing an application under Section 311, Cr.P.C., or by seeking any such relief under Section 482, Cr.P.C. In Brij Mohan's case (supra) it is held that order allowing or disallowing a party to adduce additional evidence is interlocutory order and, therefore, under Section 397(2), Cr.P.C, a revision against such an order is specifically barred. Inherent powers of the High Court under Section 482, Cr.P.C. can also not be invoked to by pass the statutory hurdle unless clear abuse of process of Court is involved. This authority is relied on in V.P. Gureja's case (supra).

There cannot be any dispute with the principles laid down in these authorities. But each case is to be decided on its own facts. Had it been a simple case of prayer made by a complainant to adduce additional evidence to fill up any lacuna, the decision would have been different. In this case, the complainant has made a serious allegation against the respondentaccused that during the pendency of the trial she has tampered with the judicial record and has written the date of receipt of notice as 31.10.1995 on the AD receipt which was not there earlier when she filed this document along with her complaint. She also made such a prayer before the District Judge seeking relief on the above facts vide Annexure P/3.

Heaven is not going to fall if an opportunity is given to the complainant to prove by examining official witness from the PostOffice as to on which date this notice dated 6.10.1995 was served on the respondent accused. If the complainant succeeds in proving that the notice was served on the respondentaccused on some other date thana 31.10.1995 then it will become obvious that the judicial record has been tampered with by somebody. It will be a serious matter for consideration of the lower Court. Therefore under the circumstances of this case it is just to prevent the abuse of the process of the Court and in the interest of administration of justice it is necessary that such an opportunity should be given to the complainantpetitioner.

Resultantly, treating this revision as a petition under Section 482, Cr.P.C. it is allowed. Impugned order is set aside and the case is remanded to the trial Magistrate to give an opportunity to the petitionercomplainant to adduce the evidence mentioned in the petition and also to give an opportunity to the accused to rebut this evidence and thereafter to decide the complaint case. Since the learned trial Magistrate has already made an observation in the impugned order that AD receipt Ex. C8 reveals that the complaint is not maintainable because of being premature, in the interest of justice this case is withdrawn from the Court of Shri Jasbir Singh. Sub Judge/Judicial Magistrate 1st Class, Chandigarh and is hereby transferred to the Court of C.J.M., Chandigarh for disposal in accordance with law.