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2014 DIGILAW 833 (MAD)

J. S. Vidhyasagar v. V. Suresh Babu

2014-04-03

G.CHOCKALINGAM

body2014
Judgment : 1. This petition has been filed by the petitioner under Section 482 of the Criminal Procedure Code seeking to set aside the order passed by the learned Judicial Magistrate/Fast Track Court No.II, Erode, in C.M.P.No.612 of 2012 in S.T.C.No.71 of 2011, dated 23.02.2012. 2. A private complaint has been filed by the respondent / complainant against the petitioner / accused under Section 138 of the Negotiable Instruments Act. During trial, when the case was posted for cross examination of D.W.1, the petitioner filed a petition under Section 311 Cr.P.C. to recall D.W.1 in order to mark some documents. The learned Magistrate dismissed the said petition. Challenging the same, the present criminal original petition has been filed. 3. The learned counsel for the petitioner/accused argued that the petitioner/accused has filed a petition in C.M.P.No.612 of 2012 before the learned Judicial Magistrate/Fast Track Court No.II, Erode, to recall D.W.1 for the purpose of marking certain documents mentioned in the petition therein. He has further contended that marking of the said documents are necessary to prove the case of the petitioner/accused. But, without applying the mind, the learned Magistrate has dismissed the petition holding that the documents cannot be marked at this stage. Hence, the order of the learned Magistrate has to be set aside and the petition filed under Section 311 of Cr.P.C. to recall D.W.1 has to be allowed. 4. Per contra, the learned counsel for the respondent/ complainant argued that the learned Magistrate, after considering the arguments made on both sides, came to a correct conclusion that the alleged documents, which are sought to be marked by the accused to prove his case, are inadmissible in evidence and the same cannot be marked through D.W.1. If at all the accused wants to mark the documents, the same can be done through the author of the documents. But without adopting this procedure, the petitioner/accused has filed the petition to recall D.W.1 for the purpose of marking the petition mentioned documents. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the records. 6. It is seen from the records that the petitioner/accused has filed the petition only for the purpose of marking the documents viz., the explanation given by one Venkatachalam to the college administration and the letters given by the accused to the college administration. 6. It is seen from the records that the petitioner/accused has filed the petition only for the purpose of marking the documents viz., the explanation given by one Venkatachalam to the college administration and the letters given by the accused to the college administration. Hence, the main object of recalling D.W.1 is only for marking the said documents. It is further admitted by both sides that D.W.1 was examined on the side of the petitioner and the case was posted for cross-examination of D.W.1. According to the learned Magistrate, the documents sought to be marked on the side of the accused are inadmissible in evidence and those documents are the attested copies said to have been kept by the college management without any seal or signature of the person who received them and hence, the said documents cannot be marked through D.W.1 since it is an admitted case that D.W.1 is not the author of the documents. In the above circumstances, the trial Court, after analysing the documents and evidence of D.W.1, came to a conclusion that the documents cannot be marked through D.W.1. 7. In this connection, learned counsel for the petitioner/accused submitted that whenever an objection is raised during the stage of recording evidence regarding the admissibility of any document or material, the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit. In support of this contention, he has relied on a decision of the Hon'ble Apex Court reported in 2001 Crl.L.J. 1254 [Bipin Shantilal Panchal Vs. State of Gujarath & another], wherein at paragraph Nos.12, 13 and 14, the Hon'ble Apex Court has held as follows:- "12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. 14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. 14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without both ering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." The dictum laid down by the Hon'ble Apex Court in the above decision is squarely applicable to the facts of the present case. In that case also, the trial Court objected to recall the witness on the ground that the documents are inadmissible in evidence. In such situation, the Hon'ble Apex Court has held that the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit. Hence, I am of the opinion, the trial Court ought to have recorded the objections made on either side and decided the matter at the time of judgment as per the decision of the Hon'ble Apex Court cited supra. But the trial Court has failed to follow the above procedure and dismissed the petition. Hence, this Court is of the considered view that the order of dismissal passed by the learned Magistrate in C.M.P.No.612 of 2012 in S.T.C.No.71 of 2011 is liable to be set aside. 8. Accordingly, the order passed by the learned Judicial Magistrate/Fast Track Court No.II, Erode, in C.M.P.No.612 of 2012 in S.T.C.No.71 of 2011, dated 23.02.2012 is set aside and the criminal original petition is allowed. The petitioner/accused is permitted to produce the documents and if the documents are produced before D.W.1 at the time of examination, the trial Court is directed to mark the same and to record the objections, if any, raised on the side of the respondent/complainant and decide the admissibility of the documents in the judgment itself. Consequently, the connected miscellaneous petition is closed. 9. Consequently, the connected miscellaneous petition is closed. 9. Since the case in S.T.C.No.71 of 2011 is pending from the year 2011, the learned Judicial Magistrate/Fast Track Court No.II, Erode, is directed to dispose of the same within a period of three months from the date of receipt of a copy of this order.