AJAY NAHTA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged the order dated 17-1-04 passed by the Addl. Civil Judge (Jr. Division ) & Judicial Magistrate No. 16, Jaipur City and the order dated 14-10-05 passed by the Special Judge, (SC & ST Court), Jaipur. By the former order, the learned Magistrate has dismissed the application filed by the petitioner under Section 311 of the Criminal Procedure Code ('the Code' for short ). By the latter order, the learned Judge has upheld the former order.

(2.) THE brief facts of the case are that the non-petitioner No. 2, Smt. Neera Jain had submitted a complaint against the petitioner, Shri Ajay Nahta for offences under Section 138 read with Section 142 of the Negotiable Instruments Act ('the Act' for short ). According to the complaint, the complainant claimed to be the proprietor of M/s. Choice. She further claimed that she was engaged in selling of marble statues and marble artifacts. She further stated that her husband, Shri Sunil Jain, is the manager of the said firm. THErefore, he is involved in the functioning of the firm. Thus, he is well aware of the facts of the case. Hence, she gave a power of attorney in his favour. According to the complainant, the accused petitioner was the proprietor of M/s. Ajay Arts and in that capacity he had bought marble statues and marble items from the complainant. By way of part payment, he had given the complainant a cheque, cheque bearing No. 824674 dated 5-5-2000 drawn at Bank of Baroda, M. I. Road, Jaipur for an amount of Rs. 13]00]000/- (Rupees Thirteen Lacs Only ). THE said cheque was deposited for encashment on 8-5-2000. However, the cheque was returned with the endorsement that "sufficient fund does not exist in the account". THEreafter, on 17-5-2000 the complainant sent a registered notice as required under the law. THE said notice was also sent on 20-5-2000, through the U. P. C. While the petitioner refused to accept the registered notice, he did receive the notice sent through the U. P. C. Even after the receipt of the notice, he did not pay the amount due. THErefore, offence under Section 138 read with Section 142 of the Act was made out. THE power of attorney, Mr. Sunil Jain was examined as P. W. 1 ; he was also cross-examined by the petitioner's counsel. Although his testimony shall be dealt with later in this judgment, but for present purpose, suffice it to say that in his cross-examination the witness had given an undertaking that he would submit the account book and the income-tax returns, if so required, before the court. However, despite his undertaking, the witness failed to do so. THErefore, the petitioner moved an application before the court requesting that the said documents be summoned from the witness. However, vide order dated 24-4-02, the said application was dismissed by the learned trial court. Aggrieved by the order dated 24-4-02, the petitioner had submitted a revision petition before the Addl. Sessions Judge (Essential Commodities Act) Jaipur. However, vide order dated 5-11-03 the learned Judge had dismissed the revision petition. Subsequently, after the close of prosecution witness, after recording of accused petitioner's statement under Section 313 of the Code, but before the final arguments were heard, the petitioner moved an application under Section 311 of the Code. In the said application the petitioner pleaded that P. W. 1, Mr. Sunil Jain should be recalled as certain vital questions were not put to him during his cross-examination. However, vide order dated 17-1-04 the learned Magistrate dismissed the said application. THE petitioner, thereupon, filed a revision petition before the learned Judge. But, vide order dated 14-10-05 the learned Judge has dismissed the said petition. Hence, this petition before this court.

(3.) IN the case of Zahira Habibullah Sheikh (supra), the Hon'ble Supreme Court had an occasion to analyse the said provision. The Hon'ble Supreme Court observed as under :- The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". IN consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. IN Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.