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2012 DIGILAW 104 (KER)

N. S. Sureshkumar v. K. T. Cherian @ George

2012-01-19

P.Q.BARKATH ALI

body2012
Judgment : 1. The short question which arise for consideration is whether a witness can be recalled under Section 311 Cr.P.C. for explaining the circumstances or explaining a mistake committed while giving evidence. 2. The complainant in C.C.No.316 of 2004 on the file of the Judicial First Class Magistrate Court, Kattappana is the revision petitioner. He challenges in this revision the order of the learned Magistrate dated December 13, 2006 in C.M.P.No.5208 of 2006 dismissing the petition to recall the complainant under Section 311 Cr.P.C. to explain the mistake in the complaint as well as in the proof affidavit filed by him regarding the year of the transaction. 3. The facts in brief, are these:-The revision/first respondent accused borrowed Rs.42,000/- from the complainant on May 4, 2001 promising to repay the same after one month and to discharge that liability, the accused issued a cheque bearing No.815743 dated June 7, 2004 drawn on the Kuttiady Branch of the Federal Bank which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice issued by the complainant, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under Section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the trial court recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P5 were marked on his side. Thereafter the revision petitioner filed C.M.P.No.5208 of 2006 stating that in the complaint and in the proof affidavit, the date of the transaction was mistakenly noted as 4.5.2001 and actually it was 4.5.2004 and that the complaint may be recalled under Section 311 Cr.P.C. to explain order dismissed the above petition holding that if the petition is allowed, it will amount to bringing new fact before the court after closing of the entire evidence. The complainant has now challenged the said order in this revision. 5. Heard the learned counsel for the petitioner and the revision first respondent. 6. The complainant has now challenged the said order in this revision. 5. Heard the learned counsel for the petitioner and the revision first respondent. 6. The counsel for the revision petitioner submitted that actually the transaction was on 4.5.2004 and the same was mistakenly shown as 4.5.2001 in the proof affidavit as well as in the complaint and that the complaint may be permitted to recall him to explain the said mistake. Counsel for the revision first respondent/accused opposed the said request of the revision petitioner. He submitted that during the cross examination of PW1, the complainant himself has stated that the transaction was on 4.5.2004 and that there is no necessity to correct the mistake committed in the complaint as well as in the proof affidavit. 7. It is an admitted case that in the proof affidavit and in the complaint, the date of the transaction was shown as 4.5.2001. But during the cross examination of PW1, he has stated that it was on 4.5.2004. Therefore I feel that the lower court should have allowed the petition and permitted the petitioner to recall him to explain the said mistake. 8. A similar question arose for consideration before a Single Bench of this Court in Valsamma v. Sudheesh Kumar (2001 (1) KLT 523). Referring to the following decisions, “State of Kerala v. Ayyappan Gopalan (1965 KLT 894), Mir Mohd. Omar & Ors. V. State of West Bengal (AIR 1989 SC 1785), RajendraPrasad v. Narcotic Cell (AIR 1999 SC 2292), HussainUmar v. Dalipsinghji (1970 SC 45)”, It has been held therein that the court has power on discretion under Section 311 Cr.P.C. to recall the witness at any stage of the trial if it considers necessary for a just decision of the case. 9. In the light of the principles laid down in the above decisions, I feel that an opportunity should be given to the petitioner to explain the mistake made by him in the proof affidavit and the complaint. That being so, the revision has to be allowed. In the result, the revision petition is allowed. The impugned order of the Judicial First Class Magistrate, Kattappana in C.M.P.No.5208/2006 in C.C.No.316/2004 dated December 13, 2006 refusing the revision petitioner/complainant to recall him is set aside. C.M.P.No.5208/2006 is allowed. That being so, the revision has to be allowed. In the result, the revision petition is allowed. The impugned order of the Judicial First Class Magistrate, Kattappana in C.M.P.No.5208/2006 in C.C.No.316/2004 dated December 13, 2006 refusing the revision petitioner/complainant to recall him is set aside. C.M.P.No.5208/2006 is allowed. The revision petitioner/complainant is permitted to recall him under Section 311 Cr.P.C. only for the purpose of explaining the alleged mistake committed in the date of transaction mentioned in the complaint and in the proof affidavit. The revision is allowed only to the above extent. Both parties shall appear before the learned Magistrate on March 15, 2012. The learned magistrate shall try to dispose of the matter, as expeditiously as possible.