Function of the Criminal Court is administration of Criminal Justice and not declare who among the parties performed better

Negotiable Instruments Act, 1881, Section 138 - Criminal Procedure Code, 1973, Section 311 - Further cross-examination-If proper evidence was not adduced or a relevant material was not brought on record due to his negligence, the Court is required to be magnanimous, in permitting such mistakes to be rectified- application moved by the accused petitioner under Section 311 Criminal Procedure Code is allowed

HIMACHAL PRADESH HIGH COURT

Before :- Surinder Singh, J.
Cr. M.M.O. No. 73 of 2008. D/d. 10.11.2008.

Manoj Bali - Petitioner
Versus
Girish Dhingra - Respondent

For the Petitioner :- Mr. Anup Rattan, Advocate.
For the Respondent :- Mr. Dibender Ghosh and Chander Pal Sood, Advocates.
Himachal Pradesh High Court

JUDGMENT
Surinder Singh, J. - The present petition has been preferred by the accused for quashing the order dated 10.6.2008 passed in Case No. 160/3 of 2000, pending in the trial Court under Section 138 of the Negotiable Instruments Act, whereby his application under Section 311, Cr.P.C. seeking permission to further cross-examine PW1 Rajeev Brar and PW2 Girish Dhingra respondent was dismissed.
2. Precisely, the facts giving rise to the present petition are that a cheque No. RKG-922845 dated 12-2-1999 drawn on Punjab National Bank, Parwanoo from account No. 8799 was issued for
 15,000/- by the petitioner herein, in favour of the respondent allegedly to satisfy his debt liability, but when it was presented to the bank it was returned vide memo dated 10-8-1999, with the objection "insufficient funds". A registered notice dated 20-8-1999 was sent on 21-8-1999 for making the payment of the cheque amount which was received by the accused-petitioner on 25-8-1999. Despite that he failed to pay the amount, as such, the complaint was filed on 17-9-1999 against him.
3. After the preliminary evidence, the accused-petitioner was summoned and notice of accusation was put to him. He denied the allegations thus he was put on trial.
4. The accused petitioner had engaged Shri Atul Jaitly, Advocate to defend him in the case. The respondent herein, besides examining himself produced his witnesses. They were meticulously cross-examined by the said counsel and after closure of the evidence, statement of the accused was also recorded under Section 313 Cr.P.C. No evidence in defense was adduced.
5. The matter was finally heard on 27-8-2007. It is not known why the judgment was not pronounced but the case was fixed for further arguments on 22-9-2007 on which date, Shri Atul Jaitly Advocate sought adjournment and thereafter it was again adjourned on various occasions on his requests and ultimately it was fixed for final arguments on 22-10-2007.
6. Thereafter, Shri R.L. Kaushal, Advocate put in appearance for the accused-petitioner. It appears that the accused had changed his Advocate. Thereafter, the case was adjourned for the arguments. It was partly heard on 22.10.2007 and Shri Kaushal sought time to cite some case law and the matter was again adjourned for 25.10.2007 on which date, an application under Section 311 of the Code of Criminal Procedure was moved for granting permission to recall PW1 Rajeev Brar and PW2 Girish Dhingra respondent for their cross-examination, on the ground that Shri Atul Jaitly Advocate was engaged by the accused to defend him and he had handed over some record, including the original notice sent to him by the complainant on 17-12-1999 through Shri Pankaj Sharma, Advocate calling upon him to pay the cheque amount which was mis-placed and further that the said Advocate was new and junior Advocate in legal profession and was not well conversant with the law and its complexities. He did not cross-examine the said witnesses properly and could not controvert them with the documentary evidence thus omitted to put material questions to them. Thus, his case was materially prejudiced and the said documents were also got misplaced by him which were not yet traceable.
7. Reply to the application was filed on 1-11-2007 whereby the respondent resisted and contested the above averments. It was contended that Shri Atul Jaitly Advocate was practicing in the Court for the last about five years and he could not be called as a new person and junior in legal profession and no affidavit of Mr. Atul Jaitly was filed to support the version put-forth. It was contended that the petitioner had tried to make out a false case.
8. The zimni order of the trial Court shows that on 18-12-2007, the petitioner was not present and his counsel Shri R.L. Kaushal, moved an application for his exemption, which was allowed. An affidavit of Mr. Atul Jaitly Advocate was also filed on the same day, whereby he admitted the fact that he is a new and junior Advocate in legal profession and lacks experience in the field of law and was not well conversant with law and its complexities, consequently, he could not cross-examine Rajiv Brar and Girish Dhingra in a proper and legal manner due to lack of experience in law as well as legal profession nor he could confront the said witnesses in respect of documentary evidence which were handed over to him and even he could not put the material questions to them. Further that the documents aforesaid were handed over to him including the notice issued by Mr. Pankaj Sharma, Advocate on behalf of the complainant was also misplaced and not traceable.
9. After hearing the parties, learned trial Court dismissed the application on the grounds that accused could not be allowed to reopen the case, when his evidence was closed long back. The plea taken in the application with respect to the ignorance, negligence and slackness of his Advocate was not accepted as such, the application was dismissed.
10. Feeling aggrieved and dis-satisfied by the impugned order, the present petition is preferred on the ground that any witness can be recalled at any stage for the purpose of examination, re-examination or cross-examination if it is essential for the just decision of the case and further the learned trial Court ignored the affidavit filed by Mr. Atul Jaitly on flimsy ground. The petitioner had entrusted all the documents to him, which were misplaced and this fact stands admitted by him in his affidavit and for that the petitioner could not be made to suffer due to the fault of his Advocate.
11. I have heard the learned counsel for the parties and have gone through the record in meticulous details.
12. At the very outset, I would like to say that Shri Atul Jaitly Advocate has acted in a highly unprofessional manner, which cannot be expected from a person who has been educated, trained and taught the legal ethics in the academics. If he was so incompetent in his profession as admitted by him that he could not have either watched the interest of his client, he should have returned the brief with an advice to engage some competent lawyer. On the top of it, he was so negligent that he misplaced the important documents so entrusted to him by his client on which his entire case and career depended. For his this unprofessional approach and negligence, some action need be taken by the Bar Council as it deserves but the accused cannot be allowed to suffer, despite the fact that the case before the learned trial Court has traveled beyond stages of recording evidence, examination of the accused under Section 313 Cr.P.C. and reached at the stage of final arguments.
13. It is pertinent to note that in his cross-examination, complainant PW2 Girish Dhingra has admitted that he had sent the notices through his counsel Pankaj Sharma. The accused petitioner with his application before the trial Court has appended the photo copy of the said notice dated 25-2-1999 sent by Shri Pankaj Sharma, Advocate and also a notice dated 17- 2-1999 sent by PW2 Girish Dhingra himself alleging therein that the cheque in question was dis-honoured on 16-2-1999. In this situation, the cause of action to lodge complaint would arise on that day and the dishonour of cheque at a subsequent stage may not give a fresh cause of action to the complainant to file the complaint. Thus, this was a material evidence.
14. Legally, the trial terminates only on pronouncing the judgment either by acquitting the accused or convicting and awarding the sentence. The Magistrate has power under Section 311 Cr.P.C. to recall the witness at any stage even after the final arguments are over if it satisfies its requirements. In fact, Section 311 of the Code of Criminal Procedure has two limbs, first part gives purely discretionary authority to a criminal Court and enable it at any stage of an enquiry, trial or proceedings of the case under the Code :-
    (a) to summon any one as a witness, or to examine any person present in Court, or
    (b) to recall and re-examine any person whose evidence has already been recorded.
15. The second part of it is imperative that the Court is bound to summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. Thus the stage of the case is immaterial, but it must be pending before the Court.
16. A corollary of laches or mistakes during the conducting of a case by the counsel who acted in an highly unprofessional manner cannot be understood as a lacuna which a court cannot fill up which has caused the inherent weakness or a latent wedge in the matrix of the defence case. Thus, no party in a trial can be foreclosed from correcting errors committed by the Advocate due to his misconduct. If proper evidence was not adduced or a relevant material was not brought on record due to his negligence, the Court is required to be magnanimous, in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
17. In the instant case, the allegations made and admitted by Shri Atul Jaitly, the counsel for the accused-petitioner during the conduct of the case vis-'-vis the facts brought on record, there is no hurdle in accepting the prayer of the accused-petitioner to re-cross examine the aforesaid witnesses with respect to the presentation and dishonour of the cheque in question by him on 16-2-1999 and issuance of notices by PW2 Girish Dhingra on 17-2- 1999 and 25-2-1999 through counsel Shri Pankaj Sharma as their cross-examination is essential for the just decision of the case. Therefore, the impugned order dated 23.5.2008 is quashed and set-aside, consequently the application moved by the accusedpetitioner under Section 311 Cr.P.C.is allowed.
18. Let an authenticated copy of this order be sent by the Registry to the Bar Council of Himachal Pradesh to take any action against Shri Atul Jaitly Advocate, Solan as it deserves in the circumstances aforesaid. The accused petitioner is also at liberty to seek damages from the said Advocate for the loss, if any caused to him due to the deficiency in services or his inefficiency.
19. The matter stands disposed of.
20. Send down the records.
Order accordingly.
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