Hans Raj Vs M/S Kushang Traders

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2025:HHC:21723

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 413 of 2024 Reserved on: 25.06.2025 Date of Decision: 08.07.2025.

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Hans Raj ...Petitioner Versus M/s. Kushang Traders ...Respondent

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Coram

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*Hon’ble Mr Justice Rakesh Kainthla,Judge.*
*Whether approved for reporting?¹No.*
For the Petitioner : Mr. Tek Chand, Advocate.
For the Respondent : Ms. Pooja Thakur, Advocate.

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Rakesh Kainthla, Judge

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The present revision is directed against the order dated 14.06.2024, vide which an application filed under Section 311 of Cr.P.C. for recalling the complainant was allowed. ( The parties shall hereinafter be referred to in the same manner in which they are arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present

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revision are that the complainant filed a complaint against the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (“in short N.I. Act”). It was asserted that the accused purchased the apple boxes of various quality from the shop of the complainant. He paid an amount of ₹9,00,000/-. He issued a cheque of ₹3,00,000/- on 16.10.2019 to discharge his legal liability to pay the remaining amount. The cheque was dishonoured on presentation with the endorsement ‘funds insufficient’. The accused did not pay the amount despite the receipt of the demand notice. Hence, it was prayed that the action be taken against the accused.

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The learned Trial Court summoned the accused, put the notice of accusation to him and recorded the statements of witnesses.

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The complainant filed an application under Section 311 of Cr.P.C. for placing on record the partnership deed and for examination the relevant record. It was asserted that the accused summoned the witness from APMC, Shimla, who misstated that the shop was allotted to Het Ram. This witness failed to produce the complete record of the Partnership of M/s. Kushang Traders. M/s. Kushang Traders is a partnership firm having two partners,

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namely, Het Ram and Madan Lal. Madan Lal is authorised to represent the Firm and execute all the documents on behalf of the Firm. The partnership deed is required to be placed on record. Hence, the application.

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The application was opposed by filing a reply taking a preliminary objection regarding the lack of maintainability. The contents of the application are denied on merits. It was asserted that the complainant filed the complaint as a proprietor of M/s. Kushang Traders. He stated in his cross-examination that he could produce the record of M/s. Kushang Traders. The record maintained by APMC, Shimla, shows that the shop No.46 was allotted to Het Ram as the Proprietor of M/s. Kushang Traders. The complainant found, after the examination of DW2, that his complaint was liable to be dismissed, and he filed the present application to concoct a false story. Hence, it was prayed that the present application be dismissed.

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Learned Trial Court held that the Partnership Deed is necessary to adjudicate the dispute pending before it. The accused will have an opportunity to cross-examine the witness, and no

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prejudice would be caused to him. Therefore, the application was allowed.

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Being aggrieved from the order passed by the learned Trial Court, the accused filed the present petition asserting that the learned Trial Court erred in allowing the application. The complainant is trying to project a different case, which was not pleaded in the plaint. The complainant had various opportunities to bring the documents on record, but he failed to do so. The application was filed to fill the lacuna and build a new case. The jurisdiction under Section 311 of Cr.P.C is to be exercised judiciously. The complainant asserted in the title of the complaint that he is the proprietor of M/s. Kushang Traders. He cannot be permitted to set up a different plea. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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I have heard Mr. Tek Chand, learned counsel, for the petitioner and Ms. Pooja Thakur, learned counsel, for the respondent.

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Mr. Tek Chand, learned counsel for the petitioner, submitted that the learned Trial Court erred in allowing the

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application. It was specifically mentioned in the cause title that M/s. Kushang Traders was suing through its proprietor. Proprietorship concern and the partnership firm are distinct, and it is impermissible to lead evidence to show that M/s. Kushang Traders is a partnership firm. The complainant also claimed in the cross-examination that he could produce the documents of ownership of M/s. Kushang Traders. He cannot be permitted to change the proprietorship concern to a partnership firm. Learned Trial Court ignored this aspect. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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Ms. Pooja Thakur, learned counsel for the respondent, submitted that the learned Trial Court had rightly allowed the application. The jurisdiction under Section 311 of the Cr.PC is vast and can be exercised in the interest of justice. The production of the partnership deed is necessary to prove the status of M/s. Kushang Traders. Therefore, it was prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The present revision has been filed against an order passed under Section 311 of the Cr.PC. It was held by this court in Vishwa Narayan Goswami v. Ram Rattan Sharma, latest HLJ 2009(1) 552, that an order dismissing an application for leading additional evidence is an interlocutory order, which is not amenable to the revisional jurisdiction. It was observed: -

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“7. The first question staring at the face is whether the order passed under Section 311 of the Code of Criminal Procedure by the learned trial Magistrate is an "interlocutory order" and not amenable to the revisional jurisdiction. My answer to it is in affirmative. The order passed by the court under Section 311 Cr.P.C. is an "interlocutory order" and revision against it is barred under Section 397(2) of the Code of Criminal Procedure.

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In fact, the word "interlocutory order" has not been defined in the Code. However, in Amar Nath's case 1978 SCC (Cri)10 , the Supreme Court held that the word "interlocutory order" in Section 397(2) of the Code has been used in a restricted sense and not in a broad or artistic sense and it merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights of the parties but any order which substantially affects the right of the parties can not be said to be an "interlocutory order".

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In Madhu Limaye's case, 1980 SCC (Cri)695 , a three-judge Bench of the Supreme Court held that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, cannot be held to be an "interlocutory order".

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Further in Rajendra Kumar Sita Ram Pande vs. Uttam and another 1999(3) SCC 134 , the apex court took note of the above proposition of law and held that the above being the

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position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted.

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Yet in another case K.K. Patel vs. State of Gujarat (2000)6 SCC 195 , while relying upon Rajendra Kumar Sita Ram Pande's case supra, held that it is well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, the feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings if so any order passed on such objection would not be merely interlocutory in nature as envisaged under Section 397(2) of the Code.

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In the present case, the order passed on the application under Section 311 Cr.P.C. by the learned trial court is neither an intermediate nor a quasi-final order and further the proceedings in the main case against the accused petitioner would not culminate even on acceding to the request of the respondent, therefore the order impugned in revision petition by the accused before the learned Sessions Judge is an "interlocutory order" and was not amenable to his revisional jurisdiction.

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It was held by the Hon’ble Supreme Court of India in

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Sethuraman vs Ratamanickam (2009) 5 SCC 153, that an order refusing to call the documents and lead additional evidence is interlocutory. It was observed: -

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“5. Secondly, what was not realised was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C. were an interlocutory orders and, as such, the revision against those orders was clearly barred under Section 397(2) Cr. P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the

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respondent/accused, and the only defence that was raised was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and the other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), the revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.”

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This judgment was followed by the Andhra Pradesh

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High Court in M. Koteswara Reddy v. State of A.P., 2019 SCC OnLine AP 318, and it was held that an application under Section 391 of Cr.P.C. is interlocutory and no revision lies against an order dismissing such an application. It was observed: -

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“ 7. Now, it is well-settled law that an order summoning a witness under Section 391 Cr. P.C., the summoning of documents under Section 91 Cr. P.C., etc., are all pure and simple interlocutory orders. On the same analogy, the petitioner filed under Section 391 Cr. P.C. in the appellate Court also to summon a witness, even for further crossexamination, is also a pure and simple interlocutory order. Section 397(2) Cr. P.C. imposes a clear bar to exercise the power of revision under Section 397(1) Cr. P.C. in respect of interlocutory orders.

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In view of the dictum laid down in the aforesaid judgment of the Apex Court that revision filed under Section 397 (1)

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Cr.P.C. against an interlocutory order is not maintainable in view of the bar engrafted under Section 397 (2) Cr.P.C., this revision, which is preferred against an interlocutory order passed under Section 391 Cr.P.C., to recall PW.1 for crossexamination, is also not maintainable.”

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Delhi High Court also took a similar view in Mohd.

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Hasan v. State, 2023 SCC OnLine Del 5469 and held:

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“11. It is trite law that an order passed under Section 311 Cr. P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr. P.C. Therefore, the present revision petition filed against the order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr. P.C. is thus not maintainable.”

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Hence, the present revision petition is not

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maintainable.

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It was submitted that the present petition be treated under the inherent jurisdiction of the Court. If it is so treated, the jurisdiction under Section 482 of the Cr.PC is confined to prevent the abuse of the process of the Court or to secure the ends of justice, and it has to be seen whether the order passed by the Court amounts to abuse of the process of the Court or is it necessary to set it aside to secure the ends of justice.

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The grievance of the accused is that the complainant described himself as be Proprietor of M/s. Kushang Traders in the

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cause title, he claimed to be the Proprietor of M/s. Kushang Traders in his cross-examination, and he is seeking to prove that M/s. Kushang Traders is a partnership firm, which is impermissible. This submission proceeds on the basis that the complainant is lying on oath and he should be prevented from doing so by exercising the jurisdiction under Section 482 of the CrPC. If the complainant is lying on oath, the remedy lies elsewhere and not by filing a petition under Section 482 of the Cr.PC. Learned Trial Court held that the examination of the witnesses and proving the partnership agreement is essential for the just decision of the case. This was a discretion vested in the learned Trial Court, and this Court will not interfere with the exercise of discretion by the learned Trial Court unless it is arbitrary or capricious. Permitting the complainant to prove the partnership deed cannot be said to be arbitrary or capricious, and this Court will not interfere with the exercise of the discretion by the learned Trial Court. The evidence sought to be admitted is not admissible, and its admission will not amount to the abuse of the process of the Court.

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Learned Trial Court had rightly held that the accused will get an opportunity to cross-examine the witness and he

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would not be prejudiced by the admission of the evidence. It will be open for the accused to argue before the learned Trial Court that since the complainant has shifted his stand, therefore, he is not a reliable witness, and the effect of such argument is to be considered by the learned Trial Court while deciding the complaint.

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In view of the above, the present petition fails and is dismissed.

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The order dated 09.07.2024, shall stand vacated. The parties, through their respective counsel, are directed to appear before the learned Trial Court on 29^th July, 2025 . The record of the learned Trial Court be returned forthwith to reach the learned Trial Court well before the date fixed.

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The observations made herein before shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.

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(Rakesh Kainthla) Judge

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8^th July, 2025 (Chander)

Hans Raj v. M/S Kushang Traders

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Hans Raj v. M/S Kushang Traders

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