LAWS(HPH)-2013-10-55

RAM KRISHAN Vs. RAMESH KUMAR

Decided On October 25, 2013
RAM KRISHAN Appellant
V/S
RAMESH KUMAR Respondents

JUDGEMENT

(1.) KULDIP Singh This judgment shall dispose of Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012 as common and overlapping questions of law are involved in both the matters. Whether the reporters of the local papers may be allowed to see the Judgment?Yes

(2.) THE relevant facts, in brief, are that respondent/complainant Ramesh Kumar filed a complaint under Section 138 readwith Section 142 of the Negotiable Instruments Act, 1881, against petitioner/accused Ram Krishan. In the complaint, accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 ( for short 'Code') to recall for cross -examination complainant along with original agreement executed probably on 18.08.2010 in respect of apple crop of complainant purchased by accused. This application was dismissed by trial Magistrate on 05.12.2011. The accused filed Cr.MMO No.8 of 2012 under Article 227 of the Constitution of India read with Section 482 of the Code and assailed order dated 05.12.2011. Cr.MMO No.8 of 2012 was dismissed on 13.01.2012. The accused has filed Cr.MP No.179 of 2013 under Article 227 of the Constitution of India readwith Section 482 of the Code for recalling order dated 13.01.2012 passed in Cr.MMO No.8 of 2012.

(3.) I have heard learned counsel for the parties. On behalf of petitioner/complainant, learned Senior Advocate has submitted that on 13.01.2012, true, correct facts were not brought to the notice of this Court which led to dismissal of Cr.MMO No.8 of 2012 on 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. In Cr.MMO No.68 of 2012, it has been argued by learned Senior Advocate that under Section 91 of the Code, the Court is competent to summon the agreement in question from the complainant in order to determine the real controversy. The Court below has misconstrued and misinterpreted the statement of complainant. The learned Senior Advocate has relied Rafiq and another versus Munshilal and another AIR 1981 SC 1400, Kunjuvarkey versus State of Kerala 2001 (2) All India Criminal L.R. 778, H.R.Shetty and others versus Titas Farnandes 2003 CRI.L.J. 1383, Trilok Singh versus State of Himachal Pradesh 2004 CRI.L.J.3134 (HP), State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 in support of his submissions.