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2000 DIGILAW 175 (AP)

P. v. Udashi VS J. V. Udeshi

2000-03-10

VAMAN RAO

body2000
VAMAN RAO, J. ( 1 ) THESE two petitions under Section 482, Cr. P. C. seek quashing of orders passed by the learned I Additional Metropolitan Sessions Judge, Hyderabad dated 27-12-1999 passed in Crl. M. P. No. 700 of 1999 and 701 of 1999 in C. C. No. 3 of 1996 on his file. ( 2 ) THE petitioner herein is the accused in the said C. C. 3 of 1996 facing charges for offences under Sections 406 and 417, I. P. C. registered against him on the basis of a complaint filed by the respondents herein. ( 3 ) THE basis of the complaint appears to be that the complainant and the accused were partners in a firm called J. K. Industries, which was constituted on 9-7-1973 and was dissolved on 1-7-1984. The allegation is that while partnership was subsisting, the accused has opened a current account in the name of J. K. Industries showing him to be sole proprietor and siphoned of the funds of the partnership firm by diverting them to the said account. The accused obviously denied the charge. ( 4 ) DURING the course of trial, the complainant has been examined as PW-1 on various dates. The Crl. M. P. No. 700 of 1999 has been filed for recalling PW-1 for further cross-examination and Crl. M. P. No. 701 of 1999 has been filed for receiving certain documents said to be Photostat copies of orders of assessment passed by some Commercial Tax authorities and a notice said to have been issued by Deputy Commercial Tax Officer. These orders and notices relate to the period between 1975 and 1977. The plea on behalf of the petitioner herein in his application before the trial Court is that these documents go to show that though the complainant has alleged that the J. K. Industries was a partnership firm, but he had operated it as a proprietary concern as evidenced by the proceedings before the Commercial Tax authorities. The recalling of PW-1 was sought to further cross-examine him on this aspect with reference to these documents and for this purpose an application for receiving these documents has been filed. The recalling of PW-1 was sought to further cross-examine him on this aspect with reference to these documents and for this purpose an application for receiving these documents has been filed. A counter was filed opposing this petition before the trial Court stating that the petition was filed only for protracting the trial and that the petitioner does not disclose that these documents are relevant and necessary for the purpose of the case. The learned Sessions Judge dismissed the petition for receiving the documents on the ground that these documents cannot be marked as they have not been admitted and that they are Photostat copies. He has also observed, at any rate, there is ample opportunity for the accused to mark these documents either during his examination under Section 313, Cr. P. C. or during defence evidence. He has also observed that the petitioner has not explained as to how he came in possession of these documents. It is also commented that these documents, which are sought to be confronted to PW-1, are prior to 1977 and the allegations of misappropriation against the petitioner relate to a period from 1979 onwards. In regard to recalling of PW-1, the learned Sessions Judge dismissed this application on similar grounds stating that there was no need to recall PW-1 as the documents sought to be confronted to him relate to a period in respect of which there was no dispute between the parties. ( 5 ) THE contention of the learned Counsel for the petitioner is that the learned Sessions Judge has not properly appreciated the plea sought to be taken by the petitioner with reference to these documents and as to the relevancy of these documents and the need to recall PW-1 for cross-examination with reference to these documents. The learned Counsel for the respondents contends that considering the circumstances of the case the learned Sessions Judge has rightly rejected both the applications. ( 6 ) IT may be mentioned that the documents in question are copies of public documents. Out of these documents two are purported to be assessment orders passed by the Sales Tax authorities and one of them is said to be a notice issued by the Deputy Commercial Tax Officer. Admittedly, PW-1 is not the author of these documents. The question of confronting PW-1 with these documents under Section 145 of the Evidence Act would therefore not arise. Admittedly, PW-1 is not the author of these documents. The question of confronting PW-1 with these documents under Section 145 of the Evidence Act would therefore not arise. However, this does not in itself could be the sole reason for rejecting the application for recalling PW-1. The above-referred circumstances would show that what was sought was that PW-1 may be recalled for cross-examination with reference to information as conveyed or gathered by the accused from these documents. It seems to be the specific case of the complainant that the firm J. K. Industries was a partnership firm. The liability of the accused, according to the complainant, obviously, ensues from the fact of his being a partner of the said firm. Reception of these documents and cross-examination of PW-1 with reference to these documents is sought to highlight the fact that even according to the complainant s conduct as evidenced by the proceedings before the Sales Tax authorities, he did not treat this firm as partnership firm but dealt with as a proprietary concern. These alleged circumstances cannot be considered as irrelevant for the purpose of the case. The learned Sessions Judge seems to have missed this aspect. Under these circumstances, permitting the petitioner to further cross-examine PW-1 on the basis of this information said to have been obtained from the petitioner that the complainant treated the firm as a sole proprietary firm cannot be said to be unreasonable. The question of receiving the documents may not arise at this stage in view of the fact, as stated above, that PW-1 is not the author of these documents. As far as using these documents for cross-examination of PW-1 is concerned, it is not necessary that these documents be filed in the Court for being used for the purpose of cross-examination. If these documents are sought to be proved at the appropriate stage on behalf of the accused, it is open to them to summon the originals or obtain the certified copies, if they are permissible, or use any such permissible method for admitting the documents in evidence. Under the circumstances, the request for recalling PW-1, however, cannot be considered as unnecessary or unrelated to the circumstances, which are relevant to the case. It is necessary to emphasize that in a criminal case the discretion to recall a witness under Section 311, Cr. Under the circumstances, the request for recalling PW-1, however, cannot be considered as unnecessary or unrelated to the circumstances, which are relevant to the case. It is necessary to emphasize that in a criminal case the discretion to recall a witness under Section 311, Cr. P. C. has to be exercised with the view to finding the truth which is germane to the charge against the accused. In this case, considering the circumstances, affording an opportunity to the accused to cross-examine PW-1 with reference to the fact that he filed a return before the Tax authorities on the basis that J. K. Industries was not a partnership firm but was a proprietary concern appears to subserve the ends of justice. ( 7 ) IN the result, the order of the learned I Additional Metropolitan Sessions Judge in respect of the refusal to recall PW-1 is set aside. In regard to the documents, the order of the learned I Additional Metropolitan Sessions Judge at this stage appears to be justified. As observed above, it is open to the petitioner, at the appropriate stage, to move the Court for receiving the documents, which could be considered as admissible. It is, however, necessary to state that allowing an application for recalling a witness for a specific purpose should not entail unduly prolonging the trial as the C. C. is of the year 1990. PW-1 shall be recalled for cross-examination on the next date of hearing on behalf of the accused. He shall be cross-examined without seeking any further time and if PW-1 is tendered for the cross-examination on the next date of hearing and if he is not cross-examined the plea for recalling PW-1 for further cross-examination shall be deemed to have been refused. This petition is disposed of with these directions. Order accordingly.