LAWS(MPH)-1952-12-3

ARJUNDAS KHANDELWAL Vs. BASANT LAL

Decided On December 24, 1952
ARJUNDAS KHANDELWAL Appellant
V/S
BASANT LAL Respondents

JUDGEMENT

(1.) IN this application by the private prosecutor in a pending sessions case two main questions have been raised; firstly, whether at this stage i. e. after the conclusion of the evidence, and before the beginning of the arguments the S. J. should be directed by this Court to make a further examination under Section 342, Cr. P. C. Secondly, whether that Court should be directed to admit further prosecution evidence under Section 540, Cr. P. C.

(2.) THE prosecution case is that the accused had committed the offences of cheating, forgery, and using a forged document. The reply is that the complainant himself sent the cheque through his servant for encashment at Allahabad with the endorsement already on it, and that the accused encashed it, and obtained the money; so that there was no cheating, no forgery, and no use of forged document, and at most a civil liability for the amount obtained on encashment. The present application is filed not by the Advocate-General, but by the complainant's own lawyer, who has been permitted to assist the Public Prosecutor. I am told by him that the petitions from the dismissal of which this application arises were filed by the public prosecutor himself. In theory anybody may invite the High Court to act under Section 435/439. Cr. P. C. ; usually it will not act except on the invitation of one that is directly affected by the alleged illegality or irregularity. In Sessions cases statutorily Incharge of the public prosecutor normally A. G. or anybody under his authority should move the application; if having given reasonable time he fails to move in the matter then and then alone the private party may do so. Then the High Court will consider whether it is prompted by spite or a genuine grievance. In this case, however, it appears that the Sessions Court, rightly anxious not to hold up the disposal of the case gave only 8 or 9 days; a period which is too short to enable the P. P. to move through the usual channel. To wait say for another fortnight or so, will cause further harassment to the parties. So this application is being considered for what it is worth.

(3.) THE further evidence is sought to be adduced in regard to a defence witness, who has described himself as a servant of the complainant. The latter was asked in cross-examination: "was it not a fact that he sent the cheque to the accused through a servant requesting; that it might be encashed at Allahabad?", which suggestion the complainant denied. In due course, the accused entered into defence and among the D. Ws. , examined, on 24. 10. 52, one Jadunandan Prasad, who stated that he was a servant of the complainant, and that he it was that brought the cheque with the endorsement from the complainant to a man of the accused. In the suggestion put to the complainant "a servant" was mentioned without this man being named; whatever this is worth, it would be for the parties to argue and the Sessions Court to consider. Three days after the discharge of this defence witness, the complainant came with a petition that he might be recalled for further cross-examination, to show that at the time the cheque was cashed he, Jadunandan Prasad, was not his servant. This petition was refused by the S. J. About 6 or 7 weeks later on 15. 12. 52 another petition was filed now requesting that under Section 540. Cr. P. C. the Court should call further evidence from witnesses named in the complainant's affidavit to show that Jadunandan Prasad was not the servant of the complainant, but was actually working under somebody else. This was also refused. Now It is prayed in revision that a direction should be given that the complainant's two petitions should be allowed.