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2003 DIGILAW 2017 (MAD)

D. Jagadees & Co. v. Shree Periyandavar Fabrics

2003-12-09

M.THANIKACHALAM

body2003
Judgment :- The complainant in C.C.No.422/2000, aggrieved by the order passed by the Judicial Magistrate No.II, Erode, in Crl.M.P.No.927/02, refusing to recall P.W.1, for further examination, has preferred this petition, seeking appropriate relief, after setting aside the said order dated 7.3.2002. 2. The petitioner herein as complainant, filed a private complaint before the Judicial Magistrate No.II, Erode, against this respondent, for the alleged offence under Section 138 of Negotiable Instruments Act, on the ground that the accused respondent, though issued a cheque to discharge the liability, the same was not honoured when presented for collection and even after the issue of notice, no payment was made and in this view, he should be dealt with accordingly. 3. The accused, since opposed the claim of the petitioner, the trial took place, and during the trial, it seems, the complainant was examined as P.W.1, marking certain documents also. Thereafter, in order to strengthen the case of the prosecution, the complainant has filed a petition under Section 311 Cr.P.C., for his recalling and to mark some more documents. This petition was opposed by the accused respondent, as if the same was filed, to fill up the laches or lacuna of the prosecution and therefore, allowing the same, would cause prejudice or injustice to him. 4. The learned Judicial Magistrate No.II, considering the rival contentions of the parties in Crl.M.P.No.927/02, had come to the conclusion, placing reliance on a decision of this Court, that the attempt of the petitioner to recall himself, for further examination, is aimed at the belated stage, to fill up the lacuna, which is not permissible and it is that order under challenge, before this Court. 5. Section 311 of Cr.P.C. gives wide power to the Court, to summon not only material witnesses, but also to examine any person, in addition to recall and examine any person, already examined, when it appears to the Court that it is essential to the just decision of the case. Therefore, ordinarily when any party to the criminal proceedings, moves an application under Section 311 Cr.P.C., as far as possible, it is the duty of the Court to find out whether the recalling and reexamination, and the evidence sought to be adduced by such examination, are essential to the just decision of the case, even ignoring the belated stage, if any. Because, the section says that any Court may at any stage of an enquiry, could deploy this provision. The belated stage alone should not be allowed to, stand as a stumbling block, while rendering justice, when the parties have requested, the Court to recall a witness, already examined, for specific purpose. If a hard core attitude is entertained by the Courts, that a petition filed under Section 311 Cr.P.C. is not maintainable, on the ground of delay alone, in my opinion, it would amount to injustice, depriving the right of the party, who is entitled to agitate his right by using Section 311 Cr.P.C., when the case is pending before the Court. That does not mean that the parties are at liberty, to move the application as and when they like and according to their whims and fancies and in this view, there should be some control also. Therefore, it is the duty of the Court, to find out, whether a petition filed under Section 311 Cr.P.C. is aimed to drag on the proceedings or it is aimed, to fill up the lacuna, or the laches committed by the parties, during the course of the trial, thereby causing not only prejudice to the accused, but also injustice. If these elements are not available, an opportunity should be given, undoubtedly, to the parties, under Section 311 Cr.P.C., to recall and reexamine the witness, already examined, if the evidence appears to be essential, to the just decision of the case. 6. The learned counsel for the petitioner submits, that the trial Court, without understanding the scope of 311 Cr.P.C., and the purpose of petition under Section 311 Cr.P.C., has dismissed the petition, committing a grave mistake and therefore, it requires rectification under Section 482 of Cr.P.C., to secure the ends of justice. 7. The learned counsel for the respondent would submit, that the attempt of the petitioner, under Section 311 Cr.P.C., is to fill up the lacuna or the grey area available in the prosecution case, and therefore, allowing this petition would cause injustice and prejudice to the accused. On going through the order of the trial Court and the purpose for which the petition is filed and the documents sought to be exhibited, I am unable to fix my seal of approval, to the contention of the learned counsel for the respondent. On going through the order of the trial Court and the purpose for which the petition is filed and the documents sought to be exhibited, I am unable to fix my seal of approval, to the contention of the learned counsel for the respondent. Whereas, I am constrained to say, that the contention of the learned counsel for the petitioner, is well founded, quite acceptable, under the facts and circumstances of the case. 8. The learned counsel for the respondent, relied on a decision of this Court in Dandy Kint Garments v. M/s. Subiksha Spinners (P) Ltd. (2000 Crl.L.J.624), wherein this Court has held that the prosecution cannot be allowed, to fill up the lacuna, by filing an application under Section 311 Cr.P.C. and examine a witness in support of a document. It is further held that the defects in the prosecution case cannot be cured, by marking of a document at belated stage and examining witness in support thereof. 9. The facts, circumstances of this case, and the purpose of recalling P.W.1 make it abundantly clear that there is no attempt on behalf of the petitioner, to fill up the lacuna or to cure the defects if any, committed by the complainant, by marking certain documents. In this context, we have to see the nature of the case. 10. The complainant is one M/s. D. Jagadees & Co represented by its Managing Partner, M.P. Devarajan. The complaint reads, that the accused respondent purchased cotton prey cloths, from the complainant, on credit basis and to discharge the liability, a cheque was issued. In support of the same, form registration certificate and partnership deed were also relied upon. During the trial, through P.W.1, Exs.P.1 & P2 were marked and they are acknowledgment of registration of form under Form D1, which says the firm registered is "D. Jagadeesh & Co" and the second document exhibited appears to be a receipt for the payment of registration. Unfortunately, the petitioner has failed to produce the form registration certificate, as well as the partnership deed, to prove the status of the complainant though the status is pleaded in the complaint. Only in order to prove the facts pleaded, for which documents were not produced, the complainant sought the aid of Section 311 Cr.P.C., by approaching the Court with an application, as aforementioned. 11. Only in order to prove the facts pleaded, for which documents were not produced, the complainant sought the aid of Section 311 Cr.P.C., by approaching the Court with an application, as aforementioned. 11. The learned trial Judge, as seen from the order, even without understanding, what are the documents marked and what are the documents attempted to be exhibited, has come to the conclusion, as if the documents are already exhibited and therefore, the belated application is aimed to fill up the lacuna. A reading of the lower Court's order makes it abundantly clear, that the same was not rendered, according to law, and the learned Judicial Magistrate has committed a grave error, in not even looking into the documents, whether they are already on record or not. Now the documents, sought to be marked through P.W.1 are form registration certificate and partnership deed, which are available at Pages 8 & 10 of the typeset. The first document sought to be introduced, by way of recalling P.W.1, is a partnership deed dated 1.4.1995, which would disclose, whether the complainant company is a partnership firm or not. The second document is the certificate of registration under Form D1, which would indicate the actual registration of the firm also. Already marked documents viz., Exs.P.1 & P.2 are quite different and they alone would not make out a case, which was already pleaded. If the complainant company has already not been described as partnership firm represented by Managing Director, then by introducing the proposed documents, some prejudice may cause to the accused. Here, only in order to prove the status of the complainant, for which, already there are pleadings, the documents are sought to be marked. Unfortunately, without understanding the scope of the petition and the documents, the learned Judicial Magistrate No.I, Erode has committed a grave mistake, in refusing to entertain the application, which he ought to have done, since those documents are essential to the just decision of the case. 12. For the foregoing reasons, I am of the considered opinion that the petition under Section 311 Cr.P.C. is not aimed, to fill up the lacuna and in this view, it is just and necessary to set aside the order of the lower court. In the result, the order of the lower Court in Crl.M.P.No.927/2002 in C.C.No.422/2000 is set aside and the petition is allowed. In the result, the order of the lower Court in Crl.M.P.No.927/2002 in C.C.No.422/2000 is set aside and the petition is allowed. The trial Court is directed to recall P.W.1 for reexamination and mark the documents and dispose of the case, by giving opportunity to both sides, on merits, as expeditiously as possible. Crl.M.P.No.4423/02 is closed.