Order 16

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CC NI ACT 1911-2021
RANJEETA YADAV, PROPRIETOR, M/S STAR GROUP Vs. BABLU
KUMAR CHAUDHARY
23.06.2023
Proceedings conducted through video conferencing on Cisco Webex platform
using the URL link https:--delhidistrictcourts.webex.com-meet-ninewdelhi1
Present: Sh. Sachin, Proxy Counsel for complainant.
Accused in person.
Vide this order, I shall dispose off the application moved by the
complainant under Section 311 Cr.P.C, seeking to examine her husband as
complainant witness.
1. The applicant contends that the complainant was examined and cross
examined on 24.05.2023 and the complainant evidence was closed. It is further
contended that during cross examination of the complainant as CW-1, it was
figured out that her husband Sh. Sunil Kumar Yadav also assisted her in the
arrangement of funds and part of the funds was also transferred to the accused
from the bank account of her husband. Therefore, it is contended that the present
application should be allowed as the deposition of the husband of the complainant
is essential for the fair and equitable disposal of the present case. It is contended
that no prejudice will be caused to the accused if the present application is
allowed. Applicant further contends that the failure to lead examination of
complainant witness would be having far reaching consequences and implications
and accordingly, the application under Section 311 Cr.P.C may be allowed by this
court in interest of justice.
(HARJOT SINGH)
MM (NI Act), Digital Court-01
PHC-New Delhi-14.10.2023
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2. Per contra, the application moved by the complainant is not opposed by the
accused and no reply to the present application has been filed.
3. Application of the complainant/applicant is perused. Considered.
Submissions heard. File perused. Before proceeding to decide the relief u/s 311
Cr.P.C a reference be made to the section.
Section 311 in The Code Of Criminal Procedure, 1973
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, 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.
4. It should be noted that the Hon’ble Supreme Court of India in “Rajendra
Prasad Vs. Narcotic Cell through its officer in charge, Delhi, AIR 1999 SC
2292 and in “Swapan Kumar Chatterjee Vs. Central Bureau of
Investigation” in CRL NO. 7748 of 2017 held that the power of the court is
plenary to summon or even recall any witness at any stage of the case if the
court considers it necessary for a just decision and if there is a strong and valid
reason to do so.
5. Considering the aforesaid legal principles in mind, I shall now proceed to
decide the present application.
(HARJOT SINGH)
MM (NI Act), Digital Court-01
PHC-New Delhi-14.10.2023
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6. The object of Section 311 of Cr.P.C is to ensure complete justice and to
make sure that there may not be any failure of justice on account of any genuine
and unintentional mistake of either party to bring the valuable evidence on record.
7. Further, the purpose of the provision is to enable the court to keep the
record straight and clear and without any ambiguity whatsoever. It is time and
again held by the apex court in catena of judgments that discretionary power u/s
311 of Cr.P.C should be exercise with utmost care and caution and should not be
exercised arbitrarily. Further, there should be strong and valid reasons of the party
to enable the court to exercise the power based on facts and circumstances of each
case. Further, the application should not be filed for abusing the process of court.
8. In the present case, the complainant seeks examination of her husband as
complainant witness as it is the version of the complainant that, it was figured out
during her cross-examination that her husband also assisted her in the
arrangement of funds and part of the funds were also transferred to the accused
from bank account of her husband.
9. Firstly, as per the complaint, the version of the complainant is that the
amount of the Rs. 10 lakhs was advanced by her as loan to the accused from
different bank accounts and by way of cash. There is no mentioning of any
amount transferred from the bank account of her husband in the complaint,
evidence affidavit. Further, the husband of the complainant is not mentioned as
witness in the list of witnesses filed by the complainant along with the complaint.
10. Secondly, it is very hard to believe that a person who has advanced a huge
amount of Rs. 10 lakhs and who is running a proprietorship firm of providing
adequate manpower solution in NCT, Delhi gained the knowledge of her husband
assisting her in the arrangement of funds and the fact that some funds were
transferred from his bank account during her cross-examination only.
(HARJOT SINGH)
MM (NI Act), Digital Court-01
PHC-New Delhi-14.10.2023
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11. Therefore, this court observes that the factum of the husband assisting her
wife in the arrangement of funds and that some funds were transferred from his
bank account was well within the knowledge of the complainant and the
complainant by way of this application is trying to improve her version of the
story and is trying to fill in lacunae in her case. The complainant had every
opportunity to bring his husband as complainant witness but no such opportunity
was availed by the complainant during her complainant evidence. Therefore, it
appears that the present application is moved with an after-thought.
12. Further, this court also observed that the present application is filed just to
abuse the process of court and to delay the matter. There is nothing in the grounds
mentioned by the complainant in her application which inspires the confidence of
court and which can be called essential for the just decision of the case and are
“expedient for the ends of justice”.
13. Therefore, the application moved by the complainant seeking examination
of the husband of the complainant as complainant witness is disallowed.
14. Having said that, it is made clear that this order shall have no bearing on the
merits of the complaint.
15. Accordingly, application is disposed off as not allowed.
Put up for further orders on 29.11.2023 at 2.00 PM.
PA is directed to upload the orders as per rules.
(HARJOT SINGH)
MM (NI Act), Digital Court-01
PHC-New Delhi-14.10.2023
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