Kirtikumar vs Pravinbhai

V.L. Achliya, J.—1. By this application, filed under Section 482 of the Code of Criminal Procedure, the applicant (original complainant) has challenged the order dated 22nd June, 2010 passed by the learned 22nd Judicial Magistrate, First Class & 138 Special Court, Nagpur in Criminal Case No. 998 of 2008. By the impugned order, the learned Magistrate has allowed the application filed by the respondent/accused to recall the witness no.1 i.e. complainant for further cross examination.

In brief, the facts leading to filling of the application are as under :

On account of dishonour of the cheque issued by the respondent, the applicant/complainant filed proceedings under section 138 of the Negotiable Instruments Act, which has been registered as Criminal Case No. 998 of 2008. After the process was issued against the respondent/accused, the accused appeared in the matter. Plea of the accused was recorded on 5/2/2009. The accused pleaded not guilty and claimed to be tried. Thereafter the case was fixed for the evidence of the applicant on 20/2/2009. On 19/09/2009, the evidence on affidavit of the complainant was filed. The examination-in-chief of the applicant was recorded on 8/12/2009. Thereafter the cross examination of the complainant was conducted on 6/1/2010. On conclusion of the cross examination of the complainant, the case was posted on 22/1/2010 for recording the evidence of witness no.2 for the complainant. Thereafter, the matter was adjourned to 6/2/2010, 17/2/2010, 2010 and 5/3/2010. On 5/3/2010 an application came to be filed by the respondent/accused seeking recall of the witness. In the application filed, the respondent/accused has assigned a reason that Advocate V.V. Datta who appeared on his behalf and conducted the cross examination of the complainant was never authorized by him to conduct the case on his behalf. The learned Magistrate has partly allowed the application and directed the complainant to remain present on the next date for further cross examination to be made through authorized advocate of the respondent/accused. Being aggrieved by said order dated 22/6/2010, the applicant has preferred this application.

Heard the learned counsel for the applicant/orig. complainant and the respondent/accused and perused the records and proceedings.

Learned counsel for the applicant has contended that allowing such an application is nothing but gross abuse of process of law. It is contended that though the learned Judge of the trial Court was convinced that the cross examination by Advocate V.V. Datta was proper, still allowed the application for further cross examination of the complainant, which according to the applicant is uncalled for. By referring to the copies of various documents produced on record, learned counsel for the applicant submitted that Advocate V.V. Datta was duly authorized by the respondent/accused in the matter. It is further contended that the reasons assigned to recall the witness that Advocate V.V. Datta was not authorized to appear and conduct the matter is totally false, concocted and made with an ulterior motive to anyhow protract the proceedings.

On the other hand, the learned counsel for the respondent/accused has supported the order passed by the trial Court. He has contended that the order passed by the learned Magistrate has caused no prejudice to the applicant/complainant. It is further contended that the impugned order cannot be interfered in exercise of the powers under section 482 of the Code of Criminal Procedure. In so far as the contention raised by the learned counsel for the applicant that the application was filed with a view to protract the proceedings, the learned counsel submitted that appropriate directions may be issued in the matter for expeditious disposal of the proceedings filed before the trial Court.

On due consideration of the submissions advanced, there appears to be substance in the say of the learned counsel for the applicant-complainant that the application may have filed with a view to protract the proceedings. The cross examination of complainant was concluded on 6.1.2010. Subsequent thereto the matter was adjourned for recording evidence of another witness for the complainant on 6.2.2010, 17.2.2010 and 5.3.2010. The application for recall of the witness came to be filed on 5.3.2010. It is therefore, difficult to believe that the respondent was unaware about the cross examination of witness conducted by Adv Datta. The allegation made that Advocate Datta was not engaged to appear in the matter appears to be afterthought and made with an oblique motive to protract the proceedings. The applicant has filed on record the copies of number of applications which were made in the proceedings by Advocate V.V. Datta as a counsel for respondent/accused. A copy of the application dated 7.7.2009 reveals that the application was made by Adv. Datta as a counsel for the accused to seeks an exemption of accused from personal appearance by assigning a reason that he was unable to attend the Court due to illness i.e. suffering from viral fever. The another application was made by him on 6.1.2010 seeking grant of personal exemption to accused on the ground of sickness. A copy of the application dated 1.12.2009 further reveals that on 1.12.2009 an application was filed on behalf of the accused for an adjournment on the ground that the accused is suffering from fever. Similar application came to be filed on 8.12.2009. It is pertinent to note that on 6.2.2010 the respondent/accused has filed an application with his own signature seeking adjournment in the matter on the ground that his counsel Shri. V.V. Datta is unable to attend the Court due to illness and sought adjournment on that ground. The application made by the respondent/accused accompanied with the certificate of illness issued by one Dr.Dilip Deotare certifying that Advocate Datta was suffering from illness and advised rest from 4.12.2010 to 13.2.2010. Thus, in the light of the application made on 6.2.2010 supported with the certificate of illness produced by the respondent/accused, the reason assigned by the applicant seeking recall of the witness appears to be totally false and concocted and made with an ulterior motive to protract the proceedings.

It is further pertinent to note that in response to the application filed by the applicant/complainant to lead secondary evidence, the respondent/accused had filed a detailed reply to said application. The said reply was duly signed and sworn by the respondent/accused and the same also bears signature of Advocate Datta as a counsel for the accused. Not only this, Advocate Datta appears to have identified the deponent/respondent. The applicant has filed another copy of the reply filed by the respondent/accused in response to the application made for calling of the record of R.C.C. No. 3307 of 2008. The said application also bears signature of respondent/accused as well Advocate Shri. Datta. Thus the copies of the various applications and copies of the reply filed on record support the submission of the learned counsel for the applicant that respondent/accused was very much aware of the appearance of Advocate Shri. Datta as advocate for the respondent/accused.

The applicant has produced on record a copy of the vakalatnama filed in the Special Civil Suit No. 545 of 2008 i.e. the suit filed by the applicant against Mohanlal Patel and others which includes respondent accused. The vakalatnama filed in said case clearly reveals that Advocate V.V. Datta has been engaged as an advocate to represent all the defendants which includes respondent accused in the said case. The vakalatnama bears the signature of respondent/accused as well as Advocate Datta. The copy of another vakalatnama filed in other proceedings further reveals that the respondent accused had engaged Advocate N.B. Naidu and Mr. Prakash Naidu, as advocates which is also singed by Advocate Datta alongwith Advocate N.B. Naidu and Prakash Naidu, the advocates engaged by the respondent/accused in Complaint Case No. 998 of 2008. It is therefore, difficult to believe that Advocate Datta appeared, conducted the cross examination in the matter without the knowledge and authority of the respondent accused as well as Advocate N.B. Naidu. Only for the reason that the respondent has produced on record copy of the complaint made to the Bar Council of Maharashtra against Advocate Datta, it cannot be inferred that Advocate Datta had appeared in the matter without the knowledge and authority from the respondent/accused as well as Advocate N.B. Naidu. In view of this, learned Judge of the trial Court has rightly observed in the matter that the cross examination of the witness made by Advocate Datta would not be illegal. The application appears to be allowed on the consideration that further cross examination of the witness would not cause any prejudice to the complainant.

In the light of the order passed, the next question that poses for consideration is whether the order passed by the learned Judge to recall the witness for further cross examination calls for interference in exercise of inherent jurisdiction under section 482 of the Code of Criminal Procedure. It is well settled position in law that the power under section 482 of the Code has to be exercised sparingly and that too in the cases where such exercise is justified by the tests laid down in the section itself. Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possess before the enactment of Code of Criminal Procedure, 1973. There are three circumstances under which inherent jurisdiction vested under section 482 of the Code may be exercised namely, (i) to give effect to the order under the Code of Criminal Procedure, (ii) to prevent abuse of the process of Court and (iii) to otherwise secure the ends of justice. Having tested, the impugned order passed by the trial court, as the circumstances under which the powers under section 482 of Code of Criminal Procedure to be exercised, I am of the view that no such circumstance exist to invoke inherent powers under section 482 of the Code. The order passed by the trial court appears to have been passed on due consideration of the facts and circumstances of the case and more particularly the contention of the learned counsel that Adv. Datta was not authorized to conduct the cross examination. In order to overcome the objection and further taking into consideration that allowing the request to recall the witness would not cause any serious prejudice to the complainant, the learned Judge has allowed the application. Since the witness is recalled for further cross examination, the cross examination is expected to be made in continuation of the cross examination already recorded in the matter. Therefore, recall of the witness for the further cross examination, would not cause any serious prejudice to the applicant. While exercising the jurisdiction under section 482 of the Code, this Court is not expected to sit as a court of appeal over the order passed by the subordinate court. Allowing the application for recall of witness for further cross examination, under the facts and circumstances of the case cannot be termed as gross abuse of process of Court or otherwise necessary to secure ends of justice so as to invoke jurisdiction under section 482 of the Code of Criminal Procedure. I am therefore, not inclined to interfere with the impugned order.

In so far as the submissions advanced that under the guise of the cross examination, the respondent/accused may protract the proceedings before the trial court, the apprehension of the complainant/applicant can be addressed by issuing appropriate direction in the matter to expedite the proceedings. The trial court is directed to expedite the hearing of the case and dispose of the same as expeditiously as possible on or before 30th April, 2016. The parties are directed to appear before the trial court on 5th March, 2016 for recording further cross examination of the complainant. Trial Court is directed not to entertain the request for adjournment unless compelling reasons are made out to grant such request. The trial court is further directed to record the further cross examination in continuation of the cross examination already recorded. Accordingly, Rule discharged in the above terms.