Criminal Misc.-M No.34220 of 2011 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 14, 2011 Dera Bassi Automobile Agency, Dera Bassi, District Patiala & another ...Petitioners Versus Dharam Pal Goyal ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pritam Saini, Advocate, for the petitioners. ***** RANJIT SINGH, J. The petitioners have prayed for quashing the order dated 13.10.2011, vide which the respondent has been permitted by the court to appear as a witness in complaint filed by him under Section 138 of the Negotiable Instruments Act read with Section 420 IPC. The petitioners stand summoned to face proceedings under Section 138 of the Negotiable Instruments Act read with Section 420 IPC on a complaint filed by the respondent. The case was fixed for evidence. The respondent did not appear himself as his own witness and instead one Sushil Kumar son of Thakur Dass Criminal Misc.-M No.34220 of 2011 (O&M) : 2 : appeared as a witness, being his special power of attorney holder. The attorney holder filed an affidavit in support of the allegations, which is marked as CW1/A and copy of the same is annexed with the petition as Annexure P-2. It is pointed out that on conclusion of the evidence, the trial Court on its own has allowed the complainant to file his own affidavit in evidence on 2.8.2010 and then the case was adjourned for cross-examination of respondent Dharam Pal Goyal. The petitioners then filed an application to urge that case was not adjourned for complainant's evidence, but was adjourned by giving last opportunity. When the respondent wanted to appear as a witness on 10.9.2010 while his attorney holder had already appeared on his behalf, the petitioners filed an application raising objection to his appearing as witness on the ground that the respondent has no right to appear as his own witness as his statement had already been recorded through his special power of attorney holder. The complainant filed reply to the said application pointing out that he had a right to examine himself as a witness and so prayed that the application be dismissed. The trial Court allowed this application and held that the complainant cannot step into the witness box after having already examined himself through his attorney. The trial Court restrained the complainant from deposing as witness and adjourned the case for further proceedings. This order was challenged by way of revision petition and the revisional Court has set-aside the order passed by the trial Court and has allowed the complainant to appear as a witness. This order is now impugned by the petitioners through the present petition under Criminal Misc.-M No.34220 of 2011 (O&M) : 3 : Section 482 Cr.P.C. As can be noticed from the impugned order, there was a considerable debate raised before the revisional Court whether the complainant is appearing to give additional evidence or otherwise as a witness. The evidence of the complaint case is still in progress and it is noticed that the complainant was appearing as a witness while his case is in progress. It was pointed out that the complaint could be filed through power of attorney, but still the complainant was required to appear as a witness in the court. This requirement was obligatory as the power of attorney holder could not depose either for payee or a holder in a due course. It was rightly submitted on behalf of the complainant that if he had chosen not appear as a witness in his complaint case, he would have certainly been faulted for non- appearance and it may have resulted in dismissal of the complaint as such. The complainant accordingly prayed that the impugned order passed by the trial court ought to be set-aside and permission granted to him to appear as his own witness. The petitioners, on the other hand, had pleaded that there had been no application moved for leading additional evidence and so the trial court had rightly declined the prayer of the complainant to permit him to appear as a witness, once the evidence on his behalf has already been given by his attorney. Plea is that complainant could not be permitted to appear as a witness to fill up the lacuna, which remained in the case of the complainant. The revision was further contested by the petitioners on the ground that the impugned order passed by the trial court was interlocutory order and as such no revision was maintainable against the same. In support, reliance and Criminal Misc.-M No.34220 of 2011 (O&M) : 4 : reference was made to Baljit and Ors. Vs. State of Haryana and another, 2009 (2) RCR (Criminal) 178 and Shekhar Tewari Vs. State of UP and another, 2011(3) RCR 309 (Allahabad High Court). It is urged that once the attorney of the complaint had appeared as a witness and had deposed on his behalf, then the complainant cannot be permitted to give his evidence, which would be to fill up lacuna left by his attorney. The revisional Court has relied on a case of Dharamarajan Vs. State, 2002(3) Criminal Court Cases 226 (Kerala) to observe that when the court refuses to examine all witnesses, then the order is not interlocutory. It is then an intermediate or is quasi final order against which revision is maintainable. The case of Baljit Singh (supra) relied upon by the counsel for the petitioners related to the aspect of recall of a witness under Section 311 Cr.P.C., whereas the present one was not a case for recall of witness or for recording additional evidence under Section 311 Cr.P.C. It is a case where the evidence of the complainant was still in progress and he wanted to depose in this case, which is opposed by the petitioners-accused, finding the controversy in the present case to be different. In Dharamarajan's case (supra), it is held that such an order would not be interlocutory order. Non-examination or non-appearance of the complainant as a witness may most likely lead to dismissal of the complaint. It is so noticed in Y.Vijayalakshmi @ Rambha Vs. Manickam Narayanana, 2005(3) RCR (Criminal) 693. Such orders have rightly been termed as quasi final order which would almost determine the Criminal Misc.-M No.34220 of 2011 (O&M) : 5 : fate of the complaint. This cannot be disputed much that the complaint would be liable to be dismissed only on the ground that the complainant had not appeared to support the allegations made in the complaint. May be that special power of attorney holder had appeared to give evidence in this case on behalf of the complainant, but he would not be a substitute for the complainant, specifically so when this complaint was filed not through special power of attorney, but by the complainant himself. Obviously, the complainant party was not well advised to lead evidence through special power of attorney holder. This fact alone may have led to dismissal of the complaint and in a way would not have advanced the cause of justice. Even if at some stage it is realised by the complainant that the special power of attorney holder could only give evidence in regard to the facts which were in his personal knowledge and he could not have deposed on the other facts which are pleaded in the complaint, the action was taken by the complainant to appear as a witness in support of his complaint. It is settled law that an attorney can give evidence only in regard to those facts which are in his personal knowledge and as such the complainant alone was entitled to give evidence in regard to the entire factual position as mentioned in the complaint. In a criminal trial, it is also the duty of the court to administer justice and advance the cause of justice. The Courts have to ensure that the justice should not be allowed to suffer on some technicalities. The case of the complainant was still in progress and the complainant was entitled to produce and examine any other witness considered relevant and essential for just decision of the Criminal Misc.-M No.34220 of 2011 (O&M) : 6 : case. It cannot be disputed that appearance of the complainant in this case in support of his complaint is essential for the just decision of the case. Even the courts are under obligation to summon and examine, recall or re-examine any person if his evidence appears to be essential for the just decision of the case. That is the power given to the court under Section 311 Cr.P.C. Not only that, the courts are also empowered to permit further evidence to be taken at the appellate stage if it thinks fit that the additional evidence to be necessary after recording reasons in this regard. The Appellate Court can either record such evidence itself or can direct it to be taken by Magistrate and when the Appellate Court is a High Court then by the court of Sessions or by a Magistrate. This is so provided under Section 391 Cr.P.C. The aim of all these provisions is to advance the cause of justice. If anything is considered essential for the just decision of the case, that should be permitted and the court need not stand on technicalities. Even if it is taken for the sake of arguments that this prayer was for recall of witness or a prayer for additional evidence, then also the aim of the court would be to see what is essential for the just decision of the case. It can neither be nor has been denied before me that the examination of the complainant is essential for the just decision of the case. The petitioners obviously are aggrieved against this action as they see the consequence thereof and the advantage they would have got in case they are able to stall the evidence of the complainant. They would then succeed on technicalities in this criminal case pending against them. If the revision is held not maintainable as pleaded, then the complainant- Criminal Misc.-M No.34220 of 2011 (O&M) : 7 : respondent could have approached this Court by invoking the inherent jurisdiction to seek correction of this infirmity that otherwise was creeping into the proceedings by making a prayer for grant of permission to appear as a witness in support of his complaint. That aspect, thus, does not have any major bearing on the case. In fairness and in law, no case is made out for calling or interference in the impugned order. The petition is accordingly dismissed. November 14, 2011 ( RANJIT SINGH ) ramesh JUDGE