Calcutta High Court (Appellete Side)
Shree Shyam Enterprise & Ors vs Unknown on 8 December, 2023
19.5.2023
11
SB
Ct. No.236
CRR 1559 of 2011
In the matter of : Shree Shyam Enterprise & Ors.
Mr. Ayan Bhattacharyya
Ms. M.S. Tiwari
Ms. Shweta Poddar ... for the petitioners
Ms. Sweta Mukherjee... for the O.P. No. 2
Mr. N.P. Agarwala
Mr. P. Bose ... for the State
This revisional application challenges the order dated
19.4.2011 passed by the learned Additional District and Sessions
Judge, Fast Track 4th Court, Bichar Bhawan, Calcutta in
connection with Criminal Appeal No. 114 of 2010 whereby learned
Appellate Court was pleased to affirm the order of conviction
recorded by learned Metropolitan Magistrate, 3rd Court, Kolkata
against the accused persons on 20.8.2010.
Briefly stated the petitioners / accused person nos. 2 to 4
are the partners of accused no. 1, a partnership firm. A cheque
was issued by the firm on 06.9.2003 for a sum of Rs.1,90,000/- in
favour of the complainant in discharge of existing liabilities. The
cheque was not honoured by the banker of the drawer for
insufficient fund. Notice under Section 113 (B) of the N.I. Act was
issued but it was not adhered to. The complainant took out an
application under Section 138 of the N.I. Act. Learned Trial Court
issued process against the accused persons after complying with
the provision of Section 200 of Cr.P.C. who in turn surrendered to
the jurisdiction of the learned Trial Court and stood the trial
pleading their innocence. Learned Trial Court after considering the
evidence adduced by the witnesses and considering the evidence
both oral and documentary was pleased to record an order of
conviction. The accused persons made an unsuccessful attempt to
get the order of conviction reversed in Criminal Appeal No. 114 of
2010. Hence this application under consideration.
Mr. Bhattacharyya, learned counsel representing the
petitioners / accused persons at the outset draws my attention to
the fact that accused persons were examined under Section 313 of
the Cr.P.C. on 4th January, 2008. Subsequent thereto on
20.4.2010 Mr. Bijay Bilotia, P.W. 1 was examined-in-chief on recall
and he was cross-examined but the testimony of P.W. 1 recorded
on recall on 20.4.2010 was not brought to the notice of the
accused persons by way of their examination under Section 313 of
Cr.P.C., therefore, the impugned judgement should not be allowed
to remain in force.
Ms. Mukherjee, learned counsel representing the opposite
party no. 2 with all fairness submits that examination of accused
persons under Section 313 of the Cr.P.C. is a component of fair
trial. Learned Trial Court ought to have brought to the notice of the
accused persons by way of their examination under Section 313 of
Cr.P.C. the evidence that came on record by way of examination
of P.W.1 on recall. However, Ms. Mukherjee submits that such
non-examination of accused persons vitiated the trial The matter
may be sent back to the learned Trial Court with a direction to re-
examine the accused persons under Section 313 of Cr.P.C. in the
light of evidence recorded on re-examination of P.W 1..
In Emperor vs. Bhanu Dharma reported in A.I.R. 1928
Bombay 140(2) the Hon'ble Division Bench of High Court at
Bombay held that
"Where, after the examination of the accused, further
witnesses for the prosecution are examined, the omission to
further examine the accused vitiates the trial."
The object of Section 313 of Cr.P.C. is to bring to the notice
of the accused persons the incriminating evidence that would be
relied upon and used against the accused persons. Therefore, it is
an essential component that constitutes the concept of fair trial.
There is an apparent infraction caused by the learned Trial Court
and overlooked by the learned Appellate Court.
Under such circumstances, to secure ends of justice, I am
inclined to invoke the provision of Section 482 and set aside the
judgment impugned with a direction upon the learned Trial Court to
examine the accused persons under Section 313 of Cr.P.C. in the
light of the testimony of P.W.1 recorded on his examination on
recall and to proceed with the case by writing fresh judgement, if
necessary granting liberty to the parties to adduce evidence.
Learned Trial Court is further requested to walk an extra
mile to dispose of the case as expeditiously as possible.
Liberty is also given to the accused person to pray before
the learned Trial Court to withdraw a sum of Rs.92,500/- (Rs.
47,500/- + Rs. 45,000/-) along with accrued interest which will be
considered by the learned Trial Court.
With this observation, the revisional application is disposed
of
Let a copy of the order along with lower court record be sent
to the learned Trial Court for information and necessary action.
(Siddhartha Roy Chowdhury, J.)
* Vide Order dated 08.12.2023.
08.12.2023
1.
While passing the order dated 19.5.2023
inadvertently liberty was given to the complainant to pray
before the learned Trial Court to withdraw a sum of
Rs.92,500/-. But this liberty ought to have been given to the
accused person who has deposited the money pursuant to
the order of the Court.
This inadvertent typographical error is rectified in the
following manner;-
"Liberty is also given to the accused person to pray
before the learned Trial Court to withdraw a sum of
Rs.92,500/- (Rs. 47,500/- + Rs. 45,000/-) along with
accrued interest which will be considered by the learned
Trial Court."
2. All these typographical / clerical mistakes be
removed.
3. The other portions of the order shall remain
unchanged.
(Siddhartha Roy Chowdhury, J.)
