CRM No. M-29668 of 2010 and connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : November 17, 2011 CRM No. M-29668 of 2010 Kewal Singh .... PETITIONER Vs. Jarnail Singh Samra and another ..... RESPONDENTS CRM No. M-29669 of 2010 Kewal Singh .... PETITIONER Vs. Jarnail Singh Samra and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Padam Jain, Advocate, for the petitioner. Mr. Ramandeep Singh, Advocate, for the respondents. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of CRM Nos. M-29668 and 29669 of 2010 as common questions of fact and law are involved. For convenience, facts are being taken from CRM No. M-29668 of 2010. Prayer in this petition is for setting aside the order dated 17.08.2010 passed by the Judicial Magistrate Ist Class, Phillaur, vide which application under Section 311 Cr.P.C. preferred by the petitioner, who is a complainant in proceedings initiated under Section 138 of the CRM No. M-29668 of 2010 and connected case 2 Negotiable Instrument Act, to examine a Handwriting Expert so as to analyse and compare the signatures on the cheque, which is alleged to have been appended by Jarnail Singh-respondent himself or not. It is the contention of the counsel for the petitioner that the application has been rejected by the trial Court merely because there is delay in moving the application and further it has been stated that the case would be further delayed if the said application is allowed. His contention is that during the defence evidence, respondent has produced a Handwriting Expert to establish that the signature on the cheque was not his. He contends that the same opportunity should be granted to the petitioner as well. Counsel for the petitioner relies upon a judgment of the Supreme Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd., 2008 (3) RCR 897 and a judgment of this Court in the case of Balwinder Singh vs. State of Punjab and others, 2010 (1) RCR (Criminal) 909, to contend that the power of the Court under Section 311 Cr.P.C. is unfettered and it is the satisfaction of the Court to allow the application at any stage of the trial. He, accordingly, prays for the present petition to be allowed. On the other hand, counsel for the respondent submits that the respondent had joined the proceedings before the trial Court way back in the year 2006. All through, it has been the stand of the respondent that the signatures on the cheque in question are forged and is not his. Referring to this, he submits that in an application for grant of anticipatory bail before the learned Additional Sessions Judge, Jalandhar, and thereafter, even before the Court during the trial, the stand was the same. He contends that the respondent moved an application for production of the standard (admitted) signatures from the Bank so that the same could CRM No. M-29668 of 2010 and connected case 3 be compared with that of the cheque in question. This application was opposed by the complainant (petitioner herein) in his reply dated 08.12.2006 (Annexure R-3) but this application was allowed. On that basis, the standard signatures were compared with that of the petitioner and thereafter, in the defence evidence led by the respondents, the respondents had examined Handwriting Expert, who has also been cross- examined by a Handwriting Expert of the complainant. After all this had happened and the evidence of the accused stands closed, now the present application has been moved. He contends that after the closure of the evidence of the parties, the present application has been moved to fill up a lacuna in the prosecution case and in any case, the equity does not permit filing such an application at this belated stage. I have heard counsel for the parties and have gone through the records of the case. The judgments relied upon by the counsel for the petitioner and the law settled therein cannot be disputed. Undisputedly, as per the provision itself, it is the discretionary power of the Court to exercise its jurisdiction under Section 311 Cr. P.C. and it is primarily the satisfaction of the Court as to whether the evidence, which is sought to be produced or summoned, is essential for the just decision of the case. In the present case, in the light of the facts which have been depicted above, it is apparent that from the very outset, the petitioner was aware of the fact that the respondent was disputing the signature on the cheque in question. In fact, it was his case that the signature was not his but of some other persons or have been forged. As a matter of fact, accused had himself moved an application on 11.10.2006 during the pendency of the evidence of the complainant to get the specimen CRM No. M-29668 of 2010 and connected case 4 signatures of Jarnail Singh and to summon the record of the Bank of Punjab so that the same could be compared with the signature appended on the cheque but the said application was initially opposed by the complainant, however, the same was allowed. Therefore, the petitioner was very much aware of the fact that the respondent was not accepting the signature on the cheque. Due diligence should have been, at that stage, exercised by the petitioner to produce an Expert to prove the signature of the respondent on the cheque, which he cannot do at this belated stage now when the evidence has been closed even of the respondent-accused and he has produced his Handwriting Expert, who has also been examined by a Handwriting Expert of the complainant. The moving of the present application under Section 311 Cr. P.C. is to fill up the lacuna left out in the prosecution case. Section 311 Cr. P.C. cannot be invoked by the Court for doing so. The justification given by the trial Court that the application has been moved by the petitioner is delayed and is with an intention to further delay the proceedings in the case, appears to be correct, which does not call for any interference by this Court in exercise of extra-ordinary jurisdiction under Section 482 Cr.P.C.. Dismissed. Any observations made herein above shall have no effect on the merits of the case pending before the trial Court. (AUGUSTINE GEORGE MASIH ) November 17, 2011 JUDGE pj CRM No. M-29668 of 2010 and connected case 5 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : November 17, 2011 CRM No. M-29668 of 2010 Kewal Singh .... PETITIONER Vs. Jarnail Singh Samra and another ..... RESPONDENTS CRM No. M-29669 of 2010 Kewal Singh .... PETITIONER Vs. Jarnail Singh Samra and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Padam Jain, Advocate, for the petitioner. Mr. Ramandeep Singh, Advocate, for the respondents. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of CRM Nos. M-29668 and 29669 of 2010. For convenience, facts are being taken from CRM No. M- 29668 of 2010. Prayer in this petition is for setting aside the order dated 17.08.2010 passed by the Civil Judge (Jr. Division), JMIC, Phillaur, vide which application under Section 311 Cr.P.C. preferred by the petitioner, who is a complainant in proceedings initiated under Section 138 of the CRM No. M-29668 of 2010 and connected case 6 Negotiable Instrument Act, to examine a Handwriting Expert so as to establish that the signatures on the cheque, which is alleged to have been issued by the respondents, was signed by them in their hand. It is the contention of the counsel for the petitioner that the application has been rejected by the trial Court merely because there is delay in moving the application and further it has been stated that the case would be further delayed if the said application is allowed. His contention is that during the defence evidence, respondents have produced a Handwriting Expert to establish that the signatures on the cheque were not theirs. He contends that the same opportunity was granted to the petitioner as well. Counsel for the petitioner, in support of this contention, relies upon a judgment of the Supreme Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd., 2008 (3) RCR 897 and a judgment of this Court in the case of Balwinder Singh vs. State of Punjab and others, 2010 (1) RCR (Criminal) 909, to contend that the power of the Court under Section 311 Cr.P.C. is unfettered and it is the satisfaction of the Court to allow the application at any stage of the trial. He, accordingly, prays for the present petition to be allowed. On the other hand, counsel for the respondents submits that the respondents had joined the proceedings before the trial Court way back in the year 2006. All through, it has been the stand of the respondents that the signatures on the cheque in question are forged and are not theirs. Referring to this, he submits that in an application for grant of anticipatory bail before the learned Additional Sessions Judge, Jalandhar, and thereafter, even before the Court during the trial, the stand was the same. He contends that the respondents moved an application for production of the standard signatures from the Bank so that the same could be CRM No. M-29668 of 2010 and connected case 7 compared with that of the cheque but the said application was opposed by the complainant (petitioner herein) in his reply dated 08.12.2006 (Annexure R-3) and accordingly, this application was allowed. On that basis, the standard signatures were compared with that of the petitioner and thereafter, in the defence evidence led by the respondents, the respondents had examined Handwriting Expert, who has also been cross- examined by another Handwriting Expert of the complainant. After all this had happened and the evidence of the accused is complete, now, at this stage, the present application has been moved. He contends that after the closure of the evidence of the parties, the present application has been moved to fill up a lacuna in the prosecution case and in any case, the equity does not permit to file such an application at this belated stage. I have heard the counsel for the parties and have gone through the records of the case. The judgments relied upon by the counsel for the petitioner and the law settled therein cannot be disputed. Undisputedly, as per the provision itself, it is the discretionary power of the Court to exercise its jurisdiction under Section 311 Cr. P.C. and it is primarily the satisfaction of the Court as to whether the evidence, which is sought to be produced or summoned, is essential for the fair and just decision of the case. In the present case, in the light of the facts which have been depicted above, it is apparent that from the very outset, the petitioner was aware of the fact that the respondents were disputing the signatures on the cheque in question. In fact, it was their case that the signatures were not theirs but of some other persons or have been forged. As a matter of fact, accused had himself moved an application on 11.10.2006 during the pendency of the evidence of the complainant to get the specimen CRM No. M-29668 of 2010 and connected case 8 signatures of Jarnail Singh and to summon the record of the Bank of Punjab so that the same could be compared with that of the cheque but the said application was initially opposed by the complainant, however, the same was allowed. Therefore, the petitioner was very much aware of the fact that the respondents were not accepting the signatures on the cheque. Due diligence should have been, at that stage, exercised by the petitioner to produce an Expert to prove the signatures of the respondents on the cheque, which he cannot do at this stage now when the evidence has been closed of even the respondents-accused and they have produced their Handwriting Expert, who has also been examined by an Expert of the complainant. The moving of the present application under Section 311 Cr. P.C. is merely to fill up the lacuna left out in the prosecution case. This provision under Section 311 Cr. P.C. cannot be exercised by the Court for doing so. The justification given by the trial Court also that the application has been moved by the petitioner after a delay and is also with an intention to delay the proceedings in the case, appears to be correct, which does not call for any interference by this Court in exercise of its extra-ordinary jurisdiction under Section 482 Cr.P.C.. Dismissed. Any observations made herein above shall have no effect on the merits of the case pending before the trial Court. (AUGUSTINE GEORGE MASIH ) November 17, 2011 JUDGE pj CRM No. M-29668 of 2010 and connected case 9