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 petitioners 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 D.W. Naresh Kumar Gupta. On 31.1.2005 DW Naresh Kumar Gupta was examined -in chief. Defence proved a document (Ext. -E) being letter head 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 letter head 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 letter heads 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 letter heads (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 reexamine witnesses for proving documents to clarify the ambiguities and the case made out by the prosecution and such reexamination 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 re -examination 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 reexamination 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/letter heads of Chanduka Oil Mills 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 Mills 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 'ssuggestion made during cross -examination by relying upon newly introduced Ext. -13 to the effect that the earlier produced letter heads by defence vide Ext. -E is 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: ''

(3.) THEREAFTER again the petitioners moved before the High Court in Cr. M.P. No. 1392 of 2004 which was disposed of on 25.1.2005 with the observations and directions that the petitioners - accused filed this Cr. M.P. No. 1392 of 2004 with a view to unnecessarily drag the trial of complaint case No. C -46 of 1999 which is five and half years old and court further observed that the petitioners accused are handling this case in such a manner, which needs no sympathy. This Court was of the view not to allow the defence witness, however one chance was allowed to the petitioner with warning that in any case, no further opportunity will be given to the petitioners for production of defence witness and further directed that proceeding will continue on day to day basis (Annexure -OP -2/J).