Full Judgment Text
2022:DHC:3767
$~ 18
* IN THE HIGH COURT OF DELHI AT NEWDELHI
Reserved on: July 19, 2022
Decided on: September19, 2022
+ W.P.(CRL) 1504/2019 & CRL.M.A. 11117/2019 (STAY)
M/S HINDUSTAN COCA-COLA
BEVERAGES PRIVATE LIMITED .....Petitioner
Through: Mr. Rajiv Tyagi, Mr.
Ambuj Ohja and Mr.
Rohit Gupta, Advocates .
V
SANJEEV SACHDEVA ..... Respondent
Through: Mr. S.S. Ahluwalia and
Mr. Mohit Bangwal,
Advocates.
CORAM:
HON’BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present petition is filed under section 482 the Code of
Criminal Procedure,1973 ( hereinafter referred to as “Cr.P.C.”)
read with article 226 of Constitution of India seeking quashing of
the orders dated 01.11.2018 and 21.01.2019 passed bv Shri AtuI
Krishna Aggrawal, ACJ-cum-CCJcum-ARC, Patiala House
Courts. New Delhi, in the Criminal Complaint bearing C.C. No.
1409 of 2017 filed under Section 138 of the Negotiable
Instruments Act, 1881 and for Direction(s) etc.
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2. The petitioner company/ complainant filed a complaint
under section 138 of Negotiable Instrument Act ,1881against the
respondent by alleging that the respondent in discharging of
liability/debt issued seven cheques total amounting to
Rs19,19,854/- and when said cheques were presented for payment
were dishonoured by the banker of the accused/ respondent i.e
Syndicate Bank, INA Colony, New Delhi on the ground of
“payment stopped by the drawer”. The respondent did not pay the
cheque amount despite legal notice dated 05.02.2007.
3. The Board of Directors of the petitioner vide Resolution
dated 02.03.2006 appointed Shri Narinder S. Kainth, Regional
Legal Counsel North, as Constituent Attorney with further power
of delegation to institute legal proceedings on behalf of the
petitioner. Thereafter Shri Narinder S. Kainth vide letter of
Authorisation dated 25.09.2006 sub delegated the powers to Shri
Sanjay Mittal and appointed him as authorised representative of
petitioner in the present complaint . The petitioner subsequently
appointed new authorized representative and lastly Shri Anil
Rajput was appointed as authorized representative of the petitioner
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vide letter of Authority dated 25.01.2018 which was signed by Shri
Narinder S. Kainth in pursuance of the power of attorney dated
18.10.2012.
4. The petitioner had examined Anil Rajput as CW-2 who
exhibited Board Resolution dated 02.03.2006 as exhibit CW-1/A.
However, the CW-2 could not exhibit letter of Authorisation dated
25.09.2006 in favour of Sanjay Mittal through whom the present
complaint was instituted in terms of the Board Resolution dated
02.03.2006 and the power of Attorney dated 18.10.2012 which are
relevant documents. However, the petitioner witness CW-2
wrongly stated that he would not rely upon the documents
exhibited CW-1/A i.e. Board Resolution dated 02.03.2006. CW-2
was partly cross-examined on 10.08.2018 and subsequently also
and his cross-examination was completed on 25.10.2018 and was
accordingly discharged. The petitioner after realising in
examination in chief of CW-2 filed an application for permission
to file supplementary affidavit in evidence for marking certain
documents left out from marking as exhibits.
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5. The case was fixed for hearing on 01.11.2018 and on that
day an application seeking permission to file supplementary
affidavit of CW-2/Anil Rajput was filed alongwith the copy of
Power of Attorney. The said application was dismissed vide order
dated 01.11.2018, the relevant portion of this order is reproduced
as under:-
This application is moved without citing any
provision of law. From the facts of the application, it
appears ta be moved under Section 311 Cr.P.C.
Through this application, complainant wants to file
supplementaiy evidence affidavit of CW2 Sh. Anil
Rajput stating that one Power of Attorney dated
18.10.2012 as Ex. CWl/A has to be exhibited along
with dispatch proof of legal notice as Ex. CW1/H6.
However perusal of his testimony dated 10.08.2018
shows that CW2 had specifically stated that he was
not relying on document Ex. CWl/A. Under such
circumstances, no permission can be given to the
witness to improvehis case later on. As regards;
exhibition of CW1/H6 is concerned, no explanation
has been given as to why the same was not exhibited
during the evidence of CW2. If such applications are
moved ahd allowed in this manner, there would be no
end to trial which will continue for indefinite period.
Even otherwise, this is a 10 years old matter and has
to be expedited. Parties cannot be permitted to bring
evidence in a piecemeal manner through , misc.
applications . Application is without merit and stands
dismissed.
CE stands closed. Put up for SA on 26..11.2018.
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6. The petitioner subsequently filed an application under
section 311 Cr.P.C. for seeking permission to produce additional
evidence i.e. the Board Resolution dated 02.03.2006 and in
continuation thereof, the Letter of Authority dated 25.09.2006 and
the Power of Attorney dated 18.10.2012 in favour of Shri Narinder
S. Kainth which were foundational documents to prove the lawful
institution and the maintainability of the Complaint. The said
application was dismissed vide order dated 21.1.2019 passed by
the Court of Shri. Atul Krishna Agrawal ACJ-CUM-CCJ-CUM-
ARC, Patiala House Courts, New Delhi by observing :-
Vide this order, I will dispose off application
u/s 311 Cr.PC moved by complainant.
Through this application complainant is
seeking opportunity to lead further evidence so as to
prove Power of Attorney dated 18.10.2012,
resolution dated 02.03.2006 and letter of
authorization dated 25.09.2006. It is stated that the
Board of Directors of complainant company vide its
Minutes dated 02.03.2006 had authorized Sh. N. S.
Kainth its Senior Legal Executive to institute the
present suit with power to sub-delegate his authority
pursuant to which the present complaint was filed by
Sh. Sanjay Mittal. Thereafter, Sh.N.S. Kainth was
solely authorized vide Power of Attorney dated
18.10.2012 to deal with legal matters of the company
with furthei* powers to sub-delegate pursuant to
which he has sub-delegated his powers upon Sh. Anil
Rajput vide letter of authorization dated 25.01.2018
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appointing him as AR of the company It is stated
that due to inadvertence and oversight the resolution
dated 02.03.2006, letter of authorization dated
25.09.2006 and power of attorney dated 18.10.2012
were not exhibited in the evidence of CW-2. Prayer is
accordingly made to exhibit the said documents.
Reply was filed by the accused to the said
application wherein it is stated that law does not
permit production of additional documents by
calling another witness except witness who had
already been examined. Further, in the present
matter, the cross-examination was already closed
and statement of accused has been recorded. The
court had already dismissed a previous application
on the same grounds on 01.11.2018. Furthermore,
letter of authorization dated 25.01.2018 had already
been exhibited during statement of AR.
Furthermore, the AR Sh. Anil Rajput in his
statement dated 10.07.2018 stated on oath that
documents dated 02.03.2006 was not being relied
upon. For that reason documents dated 25.09.2006
becomes inconsequential since it is based on
resolution dated 02.03.2006. It is argued that through
this application plaintiff wants to fulfill lacuna in this
case which is not permissible. Hence, prayer is made
for dismissal of the application.
I have perused the record and heard
arguments addressed before me. Reliance has been
placed on judgment of Hon'ble Supreme Court in the
case titled as Raja Ram Prasad Yadav Vs State of
Bihar & Anr., 2013(3) JCC 2179. On the other hand,
counsel for complainant has relied upon judgment in
case titled as Ashish Services Vs State & Ors.,2013
SCC Online Del 4753.
At the outset, it is pertinent to mention that a
similar application filed by plaintiff without sighting
any provision of law for the same purpose of
exhibiting the .above documents, had already been
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disimssed by the court on 01.12.2018. No new
ground has been madeout in the present application
grant of permission to exhibit the documents. It has
further come on record and also observed in order
dated 01.11.2018 that PW-2 Sh. Anil Rajput had
expressly stated that he was not relying on Board
Resolution dated 02.03.2006 which is Ex.CWl/A. The
complainant cannot be permitted to improve his
case. Furthermore, in the present matter
complainant evidence already stands closed.
No new ground is made out to allow the
present application, hence the same stands dismissed.
Matter be put up for DE for 07.02.2019.
7. The petitioner being aggrieved, filed the present petition and
challenged the impugned orders on the grounds that the impugned
orders were passed in a mechanical manner without due
application of mind and without considering that the documents
sought to be exhibited, were already on record . The trial court has
not appreciated the provision under section 311 Cr.P.C. in the right
perspective and impugned orders were passed against the settled
law. The impugned orders are based on conjecture and surmises.
It was prayed that the impugned orders be set aside.
8. The counsel for the petitioner stated and argued that the
Complainant was the victim of the offence of dishonor of the
Cheques committed by the accused, and by not allowing the
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petitioner/complainant to prove foundational facts and related
documents regarding lawful institution of the complaint, the
magistrate had put the petitioner/complainant in the dock by
refusing to take on record the documents of formal proof of
authorization of the person who had instituted the complaint. No
prejudice would have been caused to anyone if these foundational
documents were allowed to be taken on record. The application
under section 311 Cr.P.c should have been allowed.
9. The counsel for the respondent submits that permitting the
present application would amount to the improvement to the case
of the complainant, therefore ,the complainant cannot be permitted
to improve the case as per law .The respondent submits that it is
the settled law as laid down by the Supreme Court in Raju Ram
Prasad Yadav V State of Bihar and Anr. 2013 4 SCC 461 that
the parties should not be permitted to improve their case by filling
application u/s 311 of Cr.P.C with the intension to fill the lacuna in
the prosecution case and prayed that petition be dismissed.
10. Section 311 Cr.P.C. deals with the power of the Court to
summon material witness. It reads as under:-
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311. Any Court may, at any stage of any
inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any
person in attendance, though not summoned as a
witness, or. recall and re-examine any person already
examined; and the Court shall summon and examine
or recall and re- examine any such person if his
evidence appears to it to be essential to the just
decision of the case.
11. In Mohan Lal Shyamji Soni V Union of India & Others,
1991 Supp. (1) SCC 271 the Supreme Court has held that the
Court can entertain an Application under Section 311 of the Code
of Criminal Procedure, 1973 (Section 540 of the Old Cr.P.C.) at
any stage of enquiry, trial or other proceedings and a mandatory
obligation is imposed on the Court if the evidence sought to be
placed on record is essential for the just decision of the case.
12. The court in judgement titled as Jaiveer Kashyap V State
and Others 2012 SCC online Del. 5098 observed:
11. We have considered the arguments of the
parties. Prima facie , the allegations that have been
brought to light are extremely unfortunate. However,
we are mindful of the fact that the trial is continuing,
and that the Court of Session is empowered under
section 311, CrPC to summon material witnesses.
Section 311 reads as follows:
“311. Power to summon material witness, or
examine person present. Any Court may, at any stage of
any inquiry, trial or other proceeding under this Code,
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summon any person as a witness, or examine any
person in attendance, though not summoned as a
witness, or recall and re-examine any person already
examined; and the Court shall summon and examine or
recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the
case.”
12. The unequivocal manner in which the
section is worded (“any Court,” “at any stage,” “any
inquiry, trial or other proceeding” and “any person”)
indicates that there is no limitation whatsoever on the
power of a Trial Court in summoning/examining
persons as witnesses. This power is, in fact, coupled by
a corresponding duty to exercise the aforementioned
powers if the purported new evidence appears to it to
be essential to the just decision of the case. The Court
cannot evade its statutory responsibility by omitting to
consider whether the evidence of any witness left out
by the parties is essential or not ( Ram Bali v. State
AIR 1952 All 289). The court may summon witnesses,
and if the prosecution declines to examine them, the
court may thereupon, acting on its own initiative,
cause them to be produced ( Satyendra v. Emperor
A.I.R. 1923 Cal. 463). The power of the court to
examine a witness as conferred by section 311, cannot
be curtailed in any manner or beyond any stage, so
long as the court remains seized of the matter [ Gurdev
Singh v. State , 1982 Cr LJ 2211 (P&H)]
13. The Supreme Court observed in Rajaram Prasad Yadav V
State of Bihar & others 2013 (3) JCC 2179 that the exercise of
powers under Section 311 of the Code of Criminal Procedure,
1973 should be resorted to with the object of finding the truth or
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obtaining proper truth of such facts which lead to a just and correct
decision of the case.
14. In V.N. Patil V K. Niranjan Kumar & Ors, Criminal
Appeal No. 267/2021 decided on 04.03.2021 by the Supreme
Court, it was held as under:-
15. The object underlying Section 311 CrPC is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
statements of the witnesses examined from either
side. The determinative factor is whether it is
essential to the just decision of the case. The
significant expression that occurs is “at any stage of
any inquiry or trial or other proceeding under this
Code”. It is, however, to be borne in mind that the
discretionary power conferred under Section 311
CrPC has to be exercised judiciously, as it is always
said “wider the power, greater is the necessity of
caution while exercise of judicious discretion .”
15. It is the duty of the Court to discover the truth and truth is
the foundation of the justice. Section 311 Cr.P.C. is one of the
provisions which assist the Court in the discovery of the truth. It is
true that the power under section 311 Cr.P.C. has to be exercised
judiciously for strong and valid reason with caution to meet the
ends of justice. Simultaneously, the Court has the duty to give
adequate opportunity to the parties to lead evidence for fair trial.
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16. After considering all facts, the petitioner is given liberty to
file additional affidavit of CW-2 Anil Rajput in evidence and to
place on record the documents as mentioned in the application
under section 311 Cr.P.C. and to lead evidence as per the direction
to be given by the concerned Trial Court. Accordingly, the
impugned orders dated 01.11.2018 and 21.01.2019 passed bv Shri
AtuI Krishna Aggrawal, ACJ-cum-CCJcum-ARC, Patiala House
Courts are set aside.
17. The present petition along with pending applications, if any,
stand disposed of
SUDHIR KUMAR JAIN
(JUDGE)
SEPTEMBER 19, 2022
j/sd
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