Smt.M.Radha vs Smt.Raniyamma
2022 Latest Caselaw 5254 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.1710 OF 2022

BETWEEN:

SMT.M.RADHA
W/O SRI ANTHONY DAS
AGED ABOUT 49 YEARS
RESIDING AT NO.110, 4TH CROSS,
GAUTAM NAGAR,
SRIRAMPURAM POST
BENGALURU - 560 021.
                                                  ... PETITIONER

(BY SRI PRABHUGOUD B., ADVOCATE (PHYSICAL HEARING))

AND:

SMT.RANIYAMMA
W/O SRI MUNIRAJU
AGED ABOUT 54 YEARS
RESIDING AT NO.E-191
2ND MAIN, 4TH CROSS
RAMACHANDRAPURAM
BENGALURU 560 021.
                                             ... RESPONDENT

(BY SRI SHASHI B.P., ADVOCATE (PHYSICAL HEARING))


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO ALLOW THE PETITION BY SETTING ASIDE
THE IMPUGNED ORDER DATED 10.01.2022 PASSED ON I.A FILED
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U/S.311 OF CRPC IN C.C.NO.4586/2020 PENDING ON THE FILE OF
THE IV ADDITIONAL SMALL CAUSES JUDGE AND ADDITIONAL
CHIEF    METROPOLITAN     MAGISTRATE    BENGALURU     AND
CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE
PETITIONER THEREIN U/S.311 OF CRPC.


     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

Petitioner is before this Court calling in question the order

dated 10.01.2022 passed in C.C.No.4586/2020 dismissing the

application filed by the petitioner under Section 311 of Cr.P.C.

2. Heard Sri.Prabhugoud.B, learned counsel for petitioner

and Sri.Shashi.B.P, learned counsel for respondent.

3. Brief facts leading to the filing of the present petition as

borne out from the pleadings, are as follows:

The petitioner and the respondent enter into a transaction

of Rs.15 lakhs for which an instrument - cheque is given by the

petitioner to the respondent. The instrument - cheque when

presented for its realization was returned for want of sufficient

funds. This lead to the respondent filing a private complaint for

the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881, invoking Section 200 of the Cr.P.C. The

proceedings have gone on since then. On completion of the

evidence and cross-examination of P.W.1, it transpires that the

petitioner found several typographical errors in the evidence let

in, as the examination-in-chief of P.W.1 was by way of an

affidavit. To rectify those errors that had crept in, the petitioner

files application under Section 311 of the Cr.P.C. for recall of

P.W.1 for re-examination and further cross-examination. This

having been turned down by the learned Magistrate on the

ground that it is a tactic of the petitioner to drag on or delay the

proceedings, has driven the petitioner, before this court, in the

subject petition.

4. Learned counsel appearing for the petitioner would

submit that the typographical errors with regard to the dates

and other events would go to the root of the matter and the

cross-examination of P.W.1 was not complete and would seek

leave of this Court to give the petitioner an opportunity for such

cross-examination subject to whatever condition the Court

would impose and would also undertake not to again call the

witness for further cross-examination.

5. Learned counsel for the respondent would vehemently

argue and refute the submissions and contend that on one

pretext or the other, the petitioner wants to drag on the

proceedings and not complete the cross-examination. The

further examination would be permitted to fill any lacunae that

had occurred while cross-examining PW.1 is his submission.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

perused the material on record.

7. The afore-narrated dates and events are not in dispute.

The application for recalling of the witness P.W.1 for further

cross-examination was filed by the petitioner on 21.10.2021 on

the following grounds:

"APPLICATION FILED UNDER SECTION 311 OF CR.P.C.

In the above case advocate for accused submits as follows:

1. That the above case has been filed against the accused person for the offence punishable 138 of NI Act and the above case is posted for defense evidence of accused.

2. That in the above case PW1 i.e., the complainant has been cross examined on 07.09.2021 and on 23.09.2021, on the both occasion while cross examination of PW1 the exhibit D1 to D6 have been marked by confining the documents through PW1, but by oversight some mistake have been done in the deposition i.e., the exhibit D3 (Statement of Account) has marked as exhibit D2 instead of D3, date of transaction has been mentioned 23.12.2016, instead of 23.12.2017, the amount of Rs.14.50 Lakhs has been mentioned instead of Rs.15 Lakhs and such other so many mistakes, discrepancy and ambiguities have crept in the deposition of PW1 in her re- examination and cross examination as such it is very much required to recall the PW1 for further cross examination and to clear the mistakes and ambiguities otherwise the very purpose of taking the defense and cross examination of PW1 will be defeated and also to avoid the multiplicity of proceedings.

WHEREFORE, in the above said fact and circumstances that this Hon'ble Court be pleased to recall the PW1 for re-examination and further cross examination in the interest of justice and equity."

The Court rejects the same by order dated 10.01.2022 by the

following order:

"REASONS Point No.1: Admittedly, the complainant filed this complaint U/S 200 of Cr.P.C for the offence punishable U/s 138 of Negotiable Instruments Act, against the accused.

It is the specific defence of the complainant that, the accused had cross examined the complainant in detail and never raised any objection of mistake in the deposition. Now, filed this application not only to rectify the mistakes of the accused but also to fulfill the lacunae in the evidence at the later stage. Thus, prays to reject the application.

The accused is seeking to recall the PW1 for re-examination and further cross examination. I found much force in the submission of learned advocate for complainant, the application only rests upon some of the statements made by the complainant during the course of his evidence, which are to be considered at the time of arguments. Moreover, the burden of proving the discrepancy in the documents is on the complainant. Accused has come up with this application only to drag on the proceedings. Accordingly, the above point is answered in the negative and this court is proceed to pass the following:

Point No.2: In view of the above said reasons, I proceed to pass the following:

ORDER The application filed by the accused U/s 311 of CR.P.C is hereby rejected."

(Emphasis added)

The reason rendered by the learned Magistrate is that permitting

further cross-examination would drag on the proceedings and

the mistakes that have crept in could be considered at the time

of arguments.

8. The order (supra), in my considered view, is erroneous

for the reason that Section 311 of the Cr.P.C. mandates that at

any stage of the proceedings, the witness can be recalled by the

parties to establish their innocence or the case of the

complainant as the case would be. The Apex Court while

interpreting Section 311 of Cr.P.C. in its latest judgment in the

case of V.N.PATIL v. K.NIRANJAN KUMAR1 has held as follows:

"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:

"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

(2021)3 SCC 661

such person if his evidence appears to it to be essential to the just decision of the case."

14. 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. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17)

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11)

"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or

(iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under

this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."

17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."

(Emphasis supplied)

As held by the Apex Court, the aim of the Court is to discover

the truth. Power under Section 311 of the Cr.P.C. should be

exercised for strong and valid reasons, which I do find in the

case at hand. Mere delay in conclusion of proceedings should

not drive the learned Magistrate to dismiss the said application.

9. In the light of the facts obtaining in the case at hand

and the judgment rendered by the Apex Court (supra), I deem it

appropriate to accord one opportunity to the petitioner to further

cross-examine and conclude his evidence, but only with

imposition of cost. For the afore-said reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) Impugned order dated 10.1.2022 passed by the IV

Additional Small Causes Judge and Additional Chief

Metropolitan Magistrate, Bengaluru stands quashed.

(iii) The petitioner is permitted to further cross-examine

P.W.1 on 31.03.2022 and conclude on the same day,

subject to payment of cost of Rs.3,000/- to be paid to

the complainant.

(iv) It is made clear that the petitioner would not be

entitled to any further opportunity of filing an

application under Section 311 of the Cr.P.C. seeking

cross-examination of P.W.1.

Sd/-

JUDGE bkp CT:MJ