CRM No. M-29625 of 2010 (O&M) and other connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : September 19, 2011 CRM No. M-29625 of 2010 (O&M) Randhir Kaur and another .... PETITIONERS Vs. Gurjant Singh ..... RESPONDENT CRM No. M-30904 of 2010 (O&M) Gurjant Singh .... PETITIONER Vs. Randhir Kaur and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Jatinder Singla, Advocate, for the petitioners (in CRM No. M-29625 of 2010) for the respondents (in CRM No. M-30904 of 2010) Mr. Kapil Aggarwal, Advocate, for the petitioner (in CRM No. M-30904 of 2010) for the respondent (in CRM No. M-29625 of 2010) * * * AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of CRM No. M-29625 of 2010 preferred by the accused in a complaint filed under Section 138 of the Negotiable Instrument Act by complainant Gurjant Singh challenging order dated 08.09.2010 passed by the Chief Judicial Magistrate, Sangrur as also CRM No. M-29625 of 2010 (O&M) and other connected case 2 CRM No. M-30904 of 2010 preferred by the complainant challenging this very order. For convenience of disposal of these cases, CRM No. M- 29625 of 2010 is taken as the base case for reference. It is the contention of the counsel for the accused that the complaint, which was preferred by the respondent-Gurjant Singh, referred to only some money transactions but no mention thereof was made with regard to any sale deed or an agreement to sell. Even in the statement given by the complainant before the trial Court, this was not so stated. After the conclusion of the evidence of the complainant, when the petitioner was leading his defence and was cross-examining the witnesses, it came to light that a sale deed was executed by the complainant in favour of the petitioners-accused which, when proved, is being sought to be countered by the complainant alleging that an agreement to sell was executed on 03.07.2000 and in the said agreement to sell, the rate of the land was settled, which is ` 1,40,000/- per bigha kham and at that time, ` 5, 00,000/- were received by the complainant as earnest money. The original agreement to sell was stated to be in the possession of the petitioners and the complainant-respondent did not even have a copy thereof but it was alleged that the said agreement was notarized and entry was made in the register of Sh. Pawan Kumar Gupta, Notary Public at Sr. No. 286 dated 03.07.2000, wherein the complainant and two witnesses, namely, Deva Singh and Kapoor Singh had put thumb marks and petitioner No. 2 Khazan Singh had signed the agreement and the entry in the register of the Notary Public for himself as well as his wife, petitioner No. 1 Randhir Kaur. He, on this basis, contends that a totally new case is being now projected by the complainant which would prejudice the rights of the petitioners, who are accused, after they have led their defence before the trial Court. He further CRM No. M-29625 of 2010 (O&M) and other connected case 3 contends that the evidence, which is now sought to be adduced before the Court, would be in the guise of the re-trial and would change the nature of the case to the prejudice of the petitioners-accused. What has not been pleaded or is not the case of the complainant before the trial Court, cannot now be termed to be so in the guise of moving an application under Section 311 Cr.P.C. He, accordingly, prays for setting aside of the impugned order dated 08.09.2010 and prays for dismissal of the application for additional evidence filed by the complainant. On the other hand, counsel for the complainant contends that it has been clearly mentioned in the complaint that the cheques, which have been dishonoured, were issued by the accused with regard to some money transactions, which obviously, when connected with the sale deeds, which have been executed by the parties, clearly indicate the said cheques were issued in connection with execution of the sale deeds. What is being sought to be adduced as additional evidence, is only an official record and no prejudice would be caused to the petitioners and the interest of justice would be duly served by permitting the same and would facilitate the Court also to reach the truth of the dispute. His further contention is that the learned trial Court has only partly allowed the application preferred by the complainant under Section 311 Cr.P.C. by summoning Pawan Kumar Gupta, Notary Public along with the register, in which entry of agreement to sell dated 03.07.2000 at Sr. No. 286 was made and has wrongly not allowed the prayer of the complainant with regard to the production and re- examination of the marginal witnesses, who had thumb marked the register where the entry with regard to the agreement to sell is entered. He submits that at the time of cross-examination of the complainant by the counsel for the accused, this fact had come to the fore with regard to the execution of CRM No. M-29625 of 2010 (O&M) and other connected case 4 the sale deed and the agreement to sell. The complainant has withheld the cross-examination and stuck to the stand that the agreement was indeed entered into between the parties although the same has been denied by the accused. He, on this basis, prays for allowing the application preferred under Section 311 Cr.P.C. as a whole. In support of this contention that it is not a lacuna but an error which has crept in and the application preferred by the complainant should have been allowed as a whole, he has placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Rajendra Prasad vs. The Narcotic Cell through its Officer-in-Charge, Delhi, 1999 (3) RCR (Criminal) 440, wherein it has been held that if the prosecution discovered lacuna when defence highlighted them during arguments. Court allowing re-examination of certain witnesses on those points and held that oversight in management of the prosecution cannot be treated as an irreparable lacuna and no party in a trial can be fore-closed from correcting errors as also that the Court should permit such mistakes which had occurred due to inadvertence to be rectified. Reliance has also been placed on a judgment of this Court in the case of Dr. Gurpreet Kaur, vs. Appropriate Authority-cum-Senior Medical Officer, 2010 (2) RCR (Criminal) 169, Balwinder Singh vs. State of Punjab and others, 2010 (1) RCR (Criminal) 909. I have heard the counsel for the parties and have gone through the records of the case. The facts, as submitted by the counsel for the petitioners- accused, are not in dispute. The question, which requires to be considered in this case, is whether at the stage when the prosecution evidence has been closed as also the defence evidence, could an application under Section 311 Cr.P.C. be entertained by the Court for permitting the CRM No. M-29625 of 2010 (O&M) and other connected case 5 complainant to produce some additional evidence that too, in the form of a register of a Notary Public to prove an agreement to sell, which is alleged to have been entered into on 03.07.2000 as also the persons, who had witnessed and thumb marked the register. It is not in dispute that the agreement to sell has not seen the light of the day nor has that document been produced before the Court. The complaint, which is filed by the respondent-complainant against the petitioners-accused, does not mention that there was any transaction with regard to any sale deed or any dealing between the parties in connection with the land. What has now been sought to be adduced is in the form of rebuttal to the evidence led by the defence after the prosecution case has been closed. A new case would be made out by the complainant, if such an application is allowed and the evidence, which is sought to be adduced before the Court, is permitted to be brought on record. It is not in dispute that the language, as found in Section 311 Cr.P.C., is very wide and gives a discretion to the Court without qualifying the stage at which the trial or the proceedings are pending. What is of paramount importance for the Court to consider is that if such evidence is not permitted to be produced, would it be against the interest of justice and would that evidence be essential for the just decision of the case. Various parameters have been laid down by the Supreme Court while dealing with Section 311 Cr.P.C., which gives wide discretion to the Court to summon any person as a witness or to examine any person in attendance or to recall or to re-examine the person already examined at any stage of the enquiry or trial. However, this has to be exercised with circumspection with exercise of due care and caution so that no prejudice is caused to any of the parties, who are agitating their claim before it. No straightjacket CRM No. M-29625 of 2010 (O&M) and other connected case 6 formula can, therefore, be, in the light of the language of Section 311 Cr.P.C., culled out and, therefore, it would depend upon the facts and circumstances of each case. However, evidence should not be allowed to be received as a disguise for a re-trial or to change the nature of the case against either of the parties and the discretion of the Court must be exercised in such manner that the principle of fair play is not jeopardized. What is a paramount importance while determining this is that such evidence is necessary for a just and fair decision and, therefore, it should not give any unfair advantage to any of the rival side. A Division Bench of this Court in the case of Sukhdev Singh vs. State of Punjab, 1982 (2) CLR 318 has held as follows:- “ There is no doubt that the object of the section is not to enable anyone or the other party to fill up the gaps of its case. The section is not to be used to enable the prosecution either to improve its version at a later stage or enable it to repair the lacuna. The sole criterion in such a case should be whether the exercise of power under this section is necessary in the interest of justice. While exercising this discretion the Court has to keep in its mind the well known principle of law that the order should not operate as a rebuttal of the case set up by the defence after the prosecution case is closed.” The above principle, when seen in the light of the facts and circumstances of the present case, would lead to only one conclusion that what is being sought to be placed on record or proved on record by way of additional evidence by moving an application under Section 311 Cr.P.C. by CRM No. M-29625 of 2010 (O&M) and other connected case 7 the complainant, is that an effort has been made to produce evidence in rebuttal of the case set up by the defence after the prosecution evidence has been closed, which is not permissible in law especially when there is not an iota of pleadings nor is there any evidence on record by the complainant either oral or documentary even suggesting that there was ever any dealing between the parties in connection with any land, what to say of execution of a sale deed between the parties or agreement to sell. In view of the above, order dated 08.09.2010 passed by the learned Chief Judicial Magistrate, Sangrur, does not sustain and is hereby, set aside. The application preferred by the complainant under Section 311 Cr. P.C. stands dismissed. Consequently, Criminal Misc. No. M-29625 of 2010 is allowed in above terms, whereas Crl. Misc. No. M-30904 of 2010 is hereby, dismissed. (AUGUSTINE GEORGE MASIH ) September 19, 2011 JUDGE pj CRM No. M-29625 of 2010 (O&M) and other connected case 8