Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 383 (ORI)

Sabyasachi Ray v. State of Orissa

2014-06-25

I.MAHANTY

body2014
JUDGMENT I. MAHANTY, J. : In the present application filed under Section 482 Cr.P.C., the petitioner has sought to challenge the order dated 11.01.2010 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.3559 of 2007 allowing the recall petition filed by the prosecution under Section 311 Cr.P.C. and summoning P.Ws. 1 and 8 for adducing further evidence. 2.The brief facts of the present case is that one Barinder Singh, General Manager (East), Commercial, Godrej & Boyce Mfg. Company Ltd. (O.P.2) lodged an F.I.R. implicating the petitioner as an accused on 8.9.2007 which was registered as Mancheswar P.S. Case No. 220 of 2007 for the offences punishable under Sections 406/407/420/468/506 I.P.C. 3.The case of the prosecution in nutshell is that the accused-petitioner was a Branch Commercial Manager of the company and he instructed the transporter (M/s. Trident Carriers and Commercials) to raise false bills and accordingly, four bills were submitted by the transporter in the month of February, 2007 and March 2007 to the tune of Rs.2,27,015/-, even though no such services had been provided by the transporter. It is further alleged that the transporter received three cheques from the company and after encashing the cheques, handed over the encashed amount to the petitioner. It is further alleged that the transporter also prepared two more false bills in the month of August, 2007 on the instruction of the petitioner which were not cleared. There was an internal audit of the company at its Bhubaneswar Branch during August, 2007 wherein it was found that the transporter has submitted false bills without any supporting documents and had also received payment to that effect. Accordingly, the informant visited the Bhubaneswar Branch office and ascertained from the transporter regarding such false bills and also about receiving cheques from the company at the instance of the petitioner. A meeting was called by the informant at the Branch Office, wherein the petitioner is stated to have confessed about his guilt and undertook to repay the amount in question with a condition that he should not be terminated from service and also threatened that in case he is terminated, the company officials would face dire consequences. 4.It appears that the investigation into the case was carried out, various documents were seized and after completion of the investigation, charge-sheet was submitted. 4.It appears that the investigation into the case was carried out, various documents were seized and after completion of the investigation, charge-sheet was submitted. The accused-petitioner had earlier approached this Court in CRLMC No.2754 of 2008 under Section 482 Cr.P.C. seeking to challenge the order of cognizance dated 24.1.2008 passed by the learned S.D.J.M., Bhubaneswar. This Court was not inclined to interfere with the criminal proceeding at that stage and vide order dated 9.4.2009, directed the trial Court to conclude the trial expeditiously. Accordingly, charges were duly framed and in course of the trial, the prosecution examined as many as eight witnesses. The accused statement was duly recorded and since the petitioner did not prefer to examine any defence witness, the matter was posted for argument on 2.12.2009. On the request of the prosecution, the matter was further adjourned to 4.12.2009, once again to 8.12.2009, 14.12.2009 and then to 21.12.2009 and finally to 24.12.2009. On 24.12.2009, when the argument commenced, the prosecution filed a petition under Section 311 Cr.P.C. seeking recall of P.W.1 (Barinder Singh) and P.W.8 (Umakanta Rout) for their further examination. In the said petition, it was indicated that P.W.1 was in possession of the cash book which was maintained by the transporter and the said cash book has not been exhibited. It was further stated therein that the accused-petitioner written a letter from jail to P.W.1 for amicable settlement and although the original documents were seized on 9.9.2007 by the I.O. (P.W.8) as well as on 25.10.2007 and the I.O. was in possession of such original documents, he only submitted photocopy of the documents as well as the charge-sheet filed against the accused-petitioner. When the original documents were never produced in course of trial, the prosecution filed a petition seeking to recall the I.O. (P.W.8). The said petition under Section 311 Cr.P.C. came to be allowed by the learned S.D.J.M., Bhubaneswar by order dated 11.01.2010 which is the subject matter of challenge in the present proceeding. 5.Learned counsel for the petitioner asserted that the Magistrate had failed to apply his judicial mind to the issue at hand and passed the order placing reliance on the judgment of this Court in the case of Tikayat Routray and others, (2009) 43 OCR 268 and also the judgment of the Hon’ble Supreme Court in the case of Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 41 OCR (SC) 221 holding that when the prosecution wants to prove certain original documents, for the “interest of justice” and for “just decision” of the matter, such petition should be allowed. Learned counsel for the petitioner further asserted that the order impugned in allowing the petition under Section 311 Cr.P.C. was illegal, inasmuch as, though a very wide power has been conferred on the trial Court on summoning witnesses under Section 311 Cr.P.C., the discretion conferred on the trial Court was required to be exercised judiciously. It is well settled in law that when a greater power is vested, it is greater necessity for application of judicial mind. In essence, it is contended that the power under Section 311 Cr.P.C. made by the informant is essentially to fill up the “loopholes” of the prosecution which ought not to be permitted. 6.Learned counsel for the informant, on the other hand, supported the judgment passed by the trial Court allowing the prosecution’s application under Section 311 Cr.P.C. and the essence of the submission was that in the facts and circumstances of the present case, had the petition under Section 311 Cr.P.C. not been allowed by the trial Court, the same may would have resulted in failure of justice and it is well settled that the responsibility of the trial Court is to ensure that a guilty person does not go unpunished or any innocent person gets punished. Therefore, for a “just decision” in the matter and considering the evidence of P.Ws.1 and 8, the trial Court has applied his judicial mind to the issues in question and came to allow the petition. Therefore, there is no justification to interfere with the same. 7.On perusing the impugned order, I find that the trial Court has placed reliance on the judgment of this High Court in the case of Tikayat Routray (supra) as well as the judgment of the Hon’ble Supreme Court in the case of Godrej Pacific Tech. Ltd. (supra). In the said judgments, this Court as well as the Hon’ble Supreme Court has laid down that a Court is not to act as silent spectator and not to act mechanically and it has the duty to see that justice is done. Ltd. (supra). In the said judgments, this Court as well as the Hon’ble Supreme Court has laid down that a Court is not to act as silent spectator and not to act mechanically and it has the duty to see that justice is done. It is further noted therein that the Court has to see that the guilty person does not unpunished or an innocent person gets punished. Applying the said principles as enunciated by such judgment to the facts of the present case, this Court is of the view that the trial Court has exercised its judicial discretion in favour of the prosecution and allowed the petition under Section 311 Cr.P.C. in order to enable the prosecution to prove the original documents in the case without which there is every likelihood of the best available evidence not being brought on record. Therefore, after hearing the learned counsel for the petitioner, learned counsel for the informant and the learned counsel for the State and on perusing the impugned order, I find no justifiable ground to interfere with the impugned order herein. 8.Accordingly, the present petition filed under Section 482 Cr.P.C. stands dismissed. Interim order dated 29.1.2010 passed in Misc. Case No.158 of 2010 stands vacated. Petition dismissed.