BISHNU DAYAL GUPTA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure (hereinafter to be referred as 'code') has been filed for quashing the orders dated 23. 2. 2005 (Annexure 5), 25. 2. 2005 (Annexure 7), 5. 3. 2005 (Annexure 10), 7. 3. 2005 (Annexure 11), 9. 3. 2005 (Annexure 13) and order dated 10. 3. 2005 (Annexure 14) passed in C-46 of 1999.

(2.) FACTS giving rise to filing of this application are that a complaint case no. C-46 of 1999 was filed before the learned Chief Judicial Magistrate. Ranchi by the complainant O. P. No. 2 Pawan Kumar Gupta in which he impleaded his own brothers, petitioner Nos. 1 and 2 and his father petitioner No. 3 as accused alleging commission of offence under Sections 406,420 and 120-B of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act. ("n. I. Act" in short ). It is stated that on a number of occasions both sides came to the High Court in certain matters and directions for speedy trial of the case were made. In this connection cr. M. P. No. 825 of 2004, was filed on behalf of accused persons. Cr. M. P. No. 1146 of 2004 was filed by the complainant-O. P. No. 2. Thereafter cr. M. P. No. 1392 of 2004 was preferred by the accused persons and in all these applications, some orders were passed by the High Court. It is further stated that on 25. 1. 2005 in Cr. M. P. No. 1392 of 2004, the High Court passed orders giving last chance for examining DW Naresh Kumar Gupta. On 31. 1. 2005 DW Naresh Kumar Gupta was examined-in-Chief. Defence proved a document (Ext. E) being letterhead of Chanduka Oil Mill containing undertaking of the complainant bearing his signature. It is further stated that 14 days' adjournment was given to the complainant before cross-examination of Naresh Kumar Gupta, Thereafter on 14. 2. 2005 despite strict order of the High Court, complainant sought further adjournment of one week for cross-examination of Naresh Kumar Gupta (defence witness), but on protest by the witness, adjournment was refused and, therefore, cross-examination was done in part which continued from 16. 2. 2005 to 18. 2. 2005 when some new facts were introduced by the prosecution as the complainant proved new documents such as another letter pad of Chanduka Oil Mill as Ext. 13, besides other documents were brought later (Ext. 14 ). It is further stated that line of cross-examination of Naresh kumar Gupta adopted by the prosecution was to disapprove/controvert Ext. E i. e. , the letterhead of defence containing complainant's undertaking (Annexure-1) with the help of Ext. 13 by drawing comparison between two showing difference in certain particulars of format of the letterheads including difference in the RST, CST and RTA numbers. It is further stated that after cross-examination, at para 13, after "eliciting answers admitting difference between the two letterheads (Ext. E, and Ext. 13) suggestion that Ext. E is forged, was denied by the witness. It is further stated that by producing new facts and documents including Ext. 13 during cross-examination of Naresh Kumar Gupta, prosecution tried to take away the evidence in favour of accused and in that circumstance it became necessary for the defence to re-examine witnesses for proving documents to clarify the ambiguities and the case made out by the prosecution and such re-examination became necessary to controvert documents/ evidence brought by complainant during cross-examination of this witness and to corroborate evidence adduced by the accused. It is further stated that reexamination is necessary for clearing confusion, putting the new facts in cross-examination in favourable perspective and setting obscurities and lightening evidence. It is further stated that documents were enclosed with the said re-examination petition to satisfy the Court about their importance/ relevance in clarifying the facts introduced in cross-examination by Ext. 13 and those documents were enclosed as Annexures 1, 2, 3, 4 and 5, mainly letters/letterheads of Chanduka Oil Mill and some of these letters bear signatures of complainant. Further, another document being Bill No. 1293, dated 5. 9. 1994 of one Geeta Sales Corporation was also enclosed which had been issued in favour of Chanduka Oil Mill showing its CST number which tallies with the CST number as mentioned in the aforesaid letter- heads of the Chanduka Oil Mill produced by the defence. Thus, necessary evidence was sought to be produced by the defence which would clarify and counter the prosecution's suggestion made during cross-examination by relying upon newly introduced Ext. 13 to the effect that the earlier produced letterheads by defence vide Ext. E are forged. It is further stated that the complainant immediately filed a petition to defer cross-examination on the ground that documents as prayed by him be called for, by way of a separate petition, be allowed to come. Hence, the defence counsel did not press the said petition for re-examination for the present endorsing on its margin which is as follows : 'this petition is not being pressed at present in view of the petition filed by complainant to defer the cross-examination of witness Naresh Kr. Gupta as prayed in petition filed today simultaneously. " it is further stated that said prayer of not pressing was made on behalf of the accused before hearing on complainant's petition to call for the documents could be done in the wake of observation by the learned Magistrate that according to him, such re-examination petition is premature and hence liable to be dismissed if pressed. After hearing, the complainant's petition for calling for the documents was disallowed and complainant was asked to continue with the cross-examination to which the complainant declined, making the Court observe regarding discharge of the witnesses. Thereafter, immediately in the wake of such development about the presence of such witnesses namely Naresh Kumar Gupta, the defence filed another petition renewing his prayer that has been made in the earlier petition (Annexure 3) for re-examination of DW Naresh Kumar Gupta and the said petition was filed much before 4. 00 p. m. on 23. 2. 2005. The learned Trial court recorded the order of closing defence evidence and discharged DW naresh Kumar Gupta and the issue of re-examination, as prayed for by the defence, was kept alive on the next date i. e. , 24. 2. 2005. It is clarified that till 23. 2. 2005 the learned Magistrate had not passed any order discharging DW Naresh Kumar Gupta who was very much present and available for re-examination. On 24. 2. 2005 hearing was done fixing 25. 2. 2005 for orders, on which date, the prayer for re-examination was refused on the ground that the defence witness wants to produce new facts and documents in re-examination cannot be allowed in view of the ruling of the hon'ble Apex Court rendered in 1971 SCC (Cri) 714. The subsequent ruling relied upon VIII (1999) SLT 82=iv (1999) CCR 47 (SC)=air 1999 sc 3544 was also noted, though without reference to its material parts setting the law relating to re-examination. It is further stated that by order dated 25. 1. 2005 passed in Cr. M. P. No. 1392 of 2004 this Court ordered for examination-in-chief and cross-examination of defence witness Naresh kumar Gupta, but it never passed order not allowing re-examination and re-examination is a part of examination of witness which is examination-in-chief and cross-examination and had been advanced together under section 137 of the Indian Evidence Act and the learned Court below has failed to appreciate that re-examination is a matter of right which is statutorily conferred and judicially settled, insofar as the bounds within which such right operates are concerned.

(3.) ON the other hand, counter-affidavit has been filed on behalf of OP. No. 2 wherein it has been stated that petition filed by the petitioner is fit to be dismissed as there is no merit and there is no substance in points raised by the petitioner in the petition. It is also stated in the counter-affidavit that since several orders have been sought to be quashed in one petition and that is illegal and not maintainable. From the counter-affidavit, it further appears that the petitioner has been moving the High Court on one pretext or the other just to delay the disposal of the case and the O. P. No. 2 complainant had earlier also moved the High Court for early disposal of the case and the O. P. No. 2 has enclosed some orders of this Court and of the Judicial Commissioner, Ranchi to show that on earlier occasions, orders have been passed for quick disposal of the case, Counter-affidavit further states that the petitioner had earlier come for quashing of the order taking cognizance and entire criminal prosecution by filing WP (Cr)No. 169 of 2001 but the prayer of the petitioner was not allowed and the criminal writ petition was disposed of. The Judicial Commissioner, Ranchi vide order dated 4. 6. 2003 passed in Cr. M. P. No. 11 of 2003 had also directed for expeditious trial of the case and to conclude the same by August, 2003 (Annexure OP-2/b ). In WP (Cr) No. 19 of 2003 vide order dated 27th June, 2003, the High Court had also passed order for day-to-day hearing of the case (Annexure OP-2/c ). Besides this, the petitioner had filed a Criminal Revision No. 41 of 2003 before the Judicial Commissioner. Ranchi which was dismissed by 2nd Additional Judicial Commissioner-cum-Special Judge-1. CBI, Ranchi (Annexure OP-2/d ). Petitioner had come before the High Court through Cr. M. P. No. 602 of 2003 against the order framing charge and that petition filed by the petitioner was dismissed on 5. 12. 2003. (Annexure OP-2/e ). Thereafter the petitioner had moved before the Apex Court vide Special Leave to Appeal (Cri.) No. 608 of 2004 but the Apex Court vide order dated 20. 2. 2004 dismissed the Special Leave to Appeal (Cri.) Petition (Annexure OP-2/f ). Thereafter the petitioner moved the High Court vide Cr. M. P. No. 881 of 2004 and Cr. M. P. No. 825 of 2004 against different orders of the learned Court below and Cr. M. P no. 881 of 2004 was dismissed, but in Cr. M. P. No. 825 of 2004 by order dated 27th August, 2004, the High Court passed order with some observation directing the learned Court below to ensure disposal of the case on an early date (Annexure OP-2/h ). Thereafter O. P. No. 2 moved this Court vide Cr. M. P. No. 1140 of 2004 and this Court was pleased to pass the following order :