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2005 DIGILAW 56 (GAU)

Chhanda Debbarma v. Keshab Banik

2005-01-25

R.B.MISRA

body2005
JUDGMENT R.B. Misra, J. 1. Heard Mr. S. Deb, learned senior counsel along with Mr. S. Saha, learned counsel for the accused-petitioner and Mr. P. K. Biswas, learned counsel along with Mr. S. Bhattacharjee, learned counsel for the complainant-respondent. This Criminal Revision has been preferred under Section 397 read with Section 401 of the Code of Criminal Procedure against an order passed by the Additional Chief Judicial Magistrate, West Tripura, Agartala in C.R. No. 2922 of 2003 on 29-10-2004 where by learned trial Court had allowed the prosecution prayer to re-examine the claimant to prove two documents. 2. The brief facts, according to the accused-petitioner are that the complainant respondent had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 and a case was registered as C. R. No. 2922 of 2003 wherein learned trial Court took cognizance of the offences and issued notice upon the accused-petitioner to appear before the Court on 27-9-2003, pursuant to which, the accused-petitioner appeared and was enlarged on bail however subsequently charge was framed. However, in the examination under Section 200 of Cr.P.C. the complainant-respondent has stated that he has served a notice on 30th July, 2003 by registered post, which was received by the accused-petitioner on 31st July, 2003 and since money was not paid up to 31st August, 2003 therefore he has filed the above case. The complainant has also asserted that, the cheques submitted to the Bank on 30th June, 2003 were returned for want of money. It appears that the complainant-respondent got examined himself to prove deposit of the cheques. As contended in para 3 of the Criminal Revision petition, that in the cross-examination the complainant has indicated that "it is not a fact that on 30-7-03, I issued notice to the accused demanding the money aforesaid or that it was received by her on 31-7-2003. It is not a fact that the demand notice for repayment of the money was actually sent to the accused on 20-8-03 or that the date was inserted therein as 30-7-03" 3. PW-2 Uttam Kr. Das and PW-3 Sudhir Sutradhar gave evidence supporting the claim of the complainant-respondent. 4. It is not a fact that the demand notice for repayment of the money was actually sent to the accused on 20-8-03 or that the date was inserted therein as 30-7-03" 3. PW-2 Uttam Kr. Das and PW-3 Sudhir Sutradhar gave evidence supporting the claim of the complainant-respondent. 4. 29-10-2004 was fixed for examination of the accused under Section 313 of Cr.P.C. On that date an application under Section 311, Cr.P.C. was filed by the complainant-respondent stating that due to inadvertence he could not file two letters dated 5-8-2003 and 20-8-2003 said to have been issued by the accused-petitioner, however, these were allowed to be placed and proved before the Court as noted in the impugned order dated 29-10-2004. According to the accused-petitioner, the affect of cross-examination would be nullified as the trial Court without assigning any reason is going to consider these documents as there appears nothing, which precluded the complainant-respondent to bring these documents at the time of examination in chief as well as the stage of cross-examination. Further, by allowing the documents to be proved the accused-petitioner shall be prejudiced and proving of such documents in question shall tantamount filling up lacuna of prosecution after cross-examination. 5. Section 311 of Cr.P.C. is quoted is below : "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 such person if his evidence appears to it be essential to the just decision of the case." 6. The learned counsel for the petitioner has placed reliance on (Mohanlal Shamji Soni v. Union of India) and specially referred paragraphs 7, 16, 18, 27. The learned counsel for the petitioner has placed reliance on (Mohanlal Shamji Soni v. Union of India) and specially referred paragraphs 7, 16, 18, 27. In paragraph 7 of the decision of Mohanlal Shamji (supra), Hon'ble Supreme Court has analyzed the scope of Section 311of Cr.P.C. by prescribing permissive and mandatory obligations and in reference to para 16 it has been indicated, how the power of Court is to be exercised under Section 311 by way of discretion or mandatory depending on the facts and circumstances of each case in order to cope up the requirement of case and in reference to para 18 indications are made that due care has to be taken by the trial Court while exercising power under Section 311 of Cr.P.C. as the same should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantages of the accused or to cause serious prejudice to the defence of the accused or to give unfair advantage to the rival side. "Paragraph 18 : The next important question is whether Section 540 gives the Court carte blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said section is un-guided, uncontrolled and unanalyzed. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, 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. 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." "Paragraph 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 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." 7. According to learned counsel for the respondent, the apprehension of the accused-petitioner could be repelled itself in reference to what has been stated in para 31 of Mohanlal Shamji (Supra) part of para 31 is quoted as below : Para 31 : "Therefore, the appellant's grievance that he has been taken to surprise on the request of the prosecution of taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment impugned is prejudicial to him cannot be countenanced. Of the three witnesses permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer. In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court." 8. According to the learned counsel for the petitioner, the Supreme Court (Rajendra Prasad v. Narcotic Cell) while explaining and following its earlier judgment in Mohanlal Shamji (supra) and following Jamat Raj Kewalji Govani v. State of Maharashtra and Ram Chander v. State of Haryana has explained that lacuna in the prosecution must be understood. According to the learned counsel for the petitioner, the Supreme Court (Rajendra Prasad v. Narcotic Cell) while explaining and following its earlier judgment in Mohanlal Shamji (supra) and following Jamat Raj Kewalji Govani v. State of Maharashtra and Ram Chander v. State of Haryana has explained that lacuna in the prosecution must be understood. as the inherent weakness or a latent wedge: in the matrix of the prosecution case. The relevant paragraph of Rajendra Prasad (supra) are quoted below : "7. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witness. The adage 'to err is human' is the recognition of the possibility of making mistakes to which human are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna, which a Court cannot fill up. "8. Lacuna in the prosecution must be understood as the inherent weakness far a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. "12. It cannot be said a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at". 9. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at". 9. However, in answer to these, learned counsel for the respondent has indicated that in the present case the Court has allowed the documents already executed from the accused side and in order to prove the same for the ends of justice as there appears to be an exigency and the prosecution for that limited purpose has allowed the documents to be proved in view of the prayer of the prosecution and for re-examination at subsequent date. 10. According to the learned counsel for the respondent within the scope of 138 of the Evidence Act, even the document traced put in the cross-examination, could be taken for re-examination. Section 138 of the Evidence Act reads as below : "Order of examination.-- Witnesses shall be first examined-in-chief, then (if the ad-Verse party so desires) cross-examined then (if the party calling him so desires) re-examined." The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief." 11. There is no limitation on the power of the Court arising for the stage which the trial may have reached for examination of a witness under Section 311 but this power can and ought to be exercised in the interest of justice in view of (Darya Singh v. State of Punjab). When the whole truth has not been brought out by the prosecution witnesses, the Court may on its own call those eye-witnesses who were not called for by the prosecution but named in the F.I.R. in view of decision of Supreme Court in (Partap v. State of Uttar Pradesh) and also in (State of Assam v. Muhim Barkalai) where the Supreme Court upheld the action of the trial Court who examined a police officer as a Court witness. However, as held in Rajendra Prasad (supra) witnesses cannot be recalled to fill up lacunae in the prosecution case, but oversight or mistake in the matter of conducting the case cannot be understood as 'lacuna' which means inherent witness or a latent wedge in the matrix of the prosecution case. Section 311 is of a very wide amplitude and if there is any negligence laches or mistake by not examining material witnesses, the Court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired in the light of decision of Supreme Court in Sailendra v. State. 12. I have heard learned counsel for the parties and perused the documents. In the present case two documents are necessary and for ends of justice these are to be proved by the prosecution and are rightly being allowed to be taken into consideration and the prayer of the prosecution has rightly been allowed in addition to re-examination of the complainant-respondent under Section 311 of the Cr.P.C. This Court does not find any infirmity or illegality in the impugned order dated 29-10-2004 passed by the Additional Chief Judicial Magistrate, West Tripura, Agartala. Accordingly, this revision petition is dismissed. 13. The original lower Court records are to be transmitted to the trial Court for adjudication of the pending case before the learned Court below according to law. Petition dismissed.