Karnataka High Court

M/S Sri Shyam Buildtech vs Mr Sonu Sawlot on 2 July, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                    CRL.P No. 1117 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 2ND DAY OF JULY, 2024

                                        BEFORE
                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        CRIMINAL PETITION NO. 1117 OF 2024
               BETWEEN:

               M/S. SRI. SHYAM BUILDTECH
               A PROPRIETORSHIP CONCERN
               HAVING OFFICE AT:
               KUSHAL GARDEN ARCADE (SYSTEMS)
               1-A, PEENYA INDUSTRIAL AREA
               1ST STAGE, BENGALURU - 560 058.

                 PRESENTLY HAVING ITS OFFICE AT
                 NO.63, GROUND FLOOR
                 BLV COMPLEX, 2ND CROSS
                 KALASIPALYAM NEW EXTENSION
                 BENGALURU - 560 002
                 REPRESENTED BY ITS PROPRIETOR
                 SRI. ABHAY GUPTA
Digitally signed
by NAGAVENI S/O SURENDER KUMAR GUPTA
Location: HIGH AGED ABOUT 37 YEARS
COURT OF                                                     ...PETITIONER
KARNATAKA
               (BY SRI. GAURAV C.PATIL, ADVOCATE)

               AND:

               MR. SONU SAWLOT
               PROPRIETOR
               M/S. SRI. SAI ENTERPRISES
               NO.19, OPP. T.PARIWALA GUTTE
               B.B.ROAD, PARIWALA GUTTE
               DEVANAHALLI TALUK
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                                            NC: 2024:KHC:24693
                                       CRL.P No. 1117 of 2024




BENGALURU - 562 110.
                                                   ...RESPONDENT
(BY SRI. M.K.VENKATARAMANA, ADVOCATE)

     THIS CRL.P IS FILED U/S.482 OF THE CR.P.C PETITIONER
TO A. SET ASIDE THE ORDER DATED 29.01.2024 PASSED BY
THE XX ACMM IN C.C.NO.29812/2021 WHEREIN THE
APPLICATION U/S.311 OF CR.P.C FILED BY THE COMPLAINANT
CAME TO BE REJECTED (ANNEXURE A).

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

The petitioner is before this Court calling in question an

order dated 29.01.2024, passed by the XX Additional Chief

Metropolitan Magistrate, Bengaluru, by which an application

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

produce the evidence has been turned down.

2. Heard Sri Gaurav C. Patil, learned counsel for

petitioner and Sri M.K.Venkataramana, learned counsel for

respondent.

3. Facts in brief, germane, are as follows:

A transaction between the petitioner and the respondent

leads to certain proceedings being instituted by the respondent

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invoking Section 200 of the Cr.P.C. for the offence under

Section 138 of the N.I.Act. The matter was set for evidence of

the respondent and the respondent had closed his evidence. It

is then, the petitioner files an application under Section 311 of

the Cr.P.C., seeking production of the documents which were in

his custody and not produced earlier, which according to him

would cut at the root of the matter. The respondent does not

file objections to the said application filed under Section 311 of

the Cr.P.C. The concerned Court rejects the application on the

score that it has nothing to do with the transaction and it is a

previous transaction between the two. The complainant is

therefore before this Court in the subject petition.

4. Learned counsel for the petitioner submits that

marking of the documents is imperative as it would cut at the

root of the matter and the documents that are sought to be

produced would demonstrate that it was the transaction that

the accused is now claiming, is the transaction that was done

earlier between the parties and not the subject matter before

the concerned Court.

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5. Learned counsel for the respondent would refute the

submissions of the learned counsel for the petitioner, to

contend that the issue before the concerned Court is entirely

different and the documents that he wants to mark were of a

previous transaction and nothing to do with the present issue,

which is pending before the concerned Court. Therefore, he

seeks dismissal of the petition.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. The issue

that has driven the petitioner to this Court in the subject

petition is rejection of an application under Section 311 of the

Cr.P.C. The reasons rendered by the concerned Court in its

order dated 29.01.2024, reads as follows:

"05. The present complaint is filed for the dishonour of cheque amount of more than 5 lakhs against the accused. after appearance of accused, he has been enlarged on bail, recorded his plea and also conducted trial the same and PW-1 has been substantially cross examined. After recording 313 statement the defense side evidence was

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also led. When the case was posted for argument the present application is came to be filed.

06. Sec.311 of Cr.P.C. consist two parts. In the first part, if the applicant shown sufficient causes then by excising discretionary powers the court may allow the application. If it appears to the court that the further examination or the examination of any witness is necessary for the just decision of the case, then the court shall allow the application and to examine the witness. In the instant case on hand the complainant intends to further examine himself and want to produce some documents. On perusal of cross examination of PW-1 on page No.10 he has admitted that as per Ex.D-1 an ! amount of Rs.1,49,000/- has been received from the accused. In the present application it is stated that the said amount was received in respect of for the previous transaction held between 09.04.2021 to 14.04.2021. But, no such explanation has been given by PW-1 at the time the said admission. Further, no where neither in the complaint not in the chief evidence of PW-1 nothing has been pleaded about the application is allowed it would leads to permit the complainat for filling up of the lacuna found in the cross examination, or it amounts to defeating the admission, made during the cross examination. That apart, it at all the complainant it having any documentary evidences either in respect of present transaction or relating to the previous transaction he would have produced before this court in the beginning itself. The production of such documents at this later stage would only mean to say to overcome from the evidence given in the cross examination the said documents are intending to be produced by the complainant. Thus, I do not find any merit in the application filed by the complainant. Further, the proposed documents intended to be produced do not appears to be necessary for the just decision of the case. Accordingly, I proceed to pass the following;"

The application filed by the petitioner reads as follows:

"1. The above case is listed before this Hon'ble Court today for Arguments. The evidence of PW1 i.e., the Complainant herein was concluded on 17.04.2023 and the evidence of DW1 i.e., the Accused was

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concluded on 12.10.2023. Thereafter, the matter was posed for Arguments.

2. It is submitted that one of the Defense taken by the Accused is that payment to the tune of Rs. 1,49,000/- was paid by the Accused in discharge of the debt between 09.04.2021 to 14.04.2021. However, the said contention/defence of the Accused has been clearly denied by the Complainant in his evidence and has further stated that the payments were made with respect to a previous invoice which is not the subject matter of dispute herein.

3. It is submitted that for further conclusively proving that the said payments were not made in discharge of the legally enforceable debt in question, it is just and necessary to bring on record the following documents:

1. The Ledger Account of the Complainant and

2. The Invoice bearing No. INV21220002

3. The Bank Statement of the Current Account of the Complainant i.e., Shri Shyam Buildtech, maintained at Punjab National Bank, Peenya Industrial Estate, Bangalore Branch, having Current A/c No. 1251008700003720

4. The above said documents are material evidences to prove the case of the Complainant. The same is required to be taken on record for just decision of the case. Hence, it is just and necessary to recall the PW- 1 for leading further Chief Examination of the PW1 for purposing of furnishing the aforesaid material documents.

WHEREFORE, it is most humbly prayed that this Hon'ble Court may be pleased to re-call the Order closing the stage of evidence of PW-1 and recall PW-1 for the purpose of leading further Chief Examination for the reasons narrated herein above, in the interest of justice and equity."

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In the application, the petitioner has reasoned out as to why

the document is to be permitted to mark in his evidence. No

objections are filed by the accused. The concerned Court

records the oral objections made by the accused and holds that

it is unnecessary to produce as it concerns previous

transaction.

8. Learned counsel for petitioner has demonstrated that

the previous transaction has some bearing on the proceedings

in the present transaction. Therefore, the concerned Court

ought to have permitted to produce the documents as it is

prima facie imperative for the petitioner to prove his case that

he is sought to project before the concerned Court and merely

marking of the documents would not amount to its proof and

the petitioner would still have to prove the same in evidence.

Permitting for marking of the documents and examination and

cross-examination is the spirit of the Section 311 of the Cr.P.C.,

as elucidated by the Apex Court in the case of VARSHA GARG

V. STATE OF MADHYA PRADESH reported in 2022 SCC

OnLine SC 986. The Apex Court has held as follows:

"3

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1. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-

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examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."

35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:

"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."

36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti

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v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:

"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."

(Emphasis supplied)

The afore-quoted judgment is again followed by the Apex Court

in the case of SATBIR SINGH VS. STATE OF HARYANA AND

OTHERS reported in 2023 SCC OnLine SC 1086, wherein, it

is held as follows:

                      "....       ....            ...
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9. Section 3111 of the Criminal Procedure Code, 1973 (hereinafter referred to as the "CrPC") has engaged this Court's attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340:

'17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.

18. 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], this Court while explaining scope and ambit of Section 311 has held as under : (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 [CrPC] 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."

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19. In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8], this Court has considered the concept underlying under Section 311 as under : (SCC p. 392, para 27) "27. The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

20. In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510], it was held thus : (SCC pp. 404g-405a) "... Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial"

is not enough unless there are tangible reasons to show how the fair trial suffered

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without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan [Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244], this Court has held as under : (SCC p. 719, para 38) "38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5- 1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination

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was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed."'

10. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 as under:

'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.

12. Where the prosecution evidence has been closed long back and the reasons for non- examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the

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accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.'

11. In Harendra Rai v. State of Bihar, 2023 SCC OnLine SC 1023, a 3-Judge Bench of this Court was of the opinion that Section 311, CrPC should be invoked when '... it is essential for the just decision of the case.'

12. Having considered the matter and surveyed the law supra, the Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request for recall of the appellant under Section 311, CrPC was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined."

In the light of the circumstance that the petitioner projected

before the concerned Court and the judgment rendered by the

Apex Court, the order is rendered unsustainable.

9. Learned counsel for the respondent has not filed

objections before this Court; would place reliance on paragraph

No.5 of the order and that are noted, only to be rejected. The

obliteration of the order would not mean that the petitioner

would drag the proceedings on the score of marking of the

documents. Examination and cross-examination of the witness

should be concluded on the date fixed by the concerned Court.

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10. For the aforesaid reasons, the following:

ORDER

a. The criminal petition and the application filed under Section 311 of the Cr.P.C. are allowed.

b. The order dated 29.01.2024, passed in C.C.No.29812/2021 stands quashed.

c. The concerned Court shall permit the petitioner to mark the documents, examine and cross- examine the witness on a fixed date and the petitioner shall conclude the same on the dates that would be fixed by the concerned Court.

d. The concerned Court shall also bear in mind that the petitioner shall not unnecessarily drag on the proceedings on the ruse of marking of the documents, examination and cross-examination of the witness.