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2015 DIGILAW 285 (KAR)

CHANDRAKANTH v. SARITHA

2015-03-13

A.N.VENUGOPALA GOWDA

body2015
Order An application filed by the petitioner under S.311 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), to recall PW1 for the purpose of production and marking of a demand promissory note and receipt having been dismissed by the learned Magistrate, this petition was filed. 2. The brief facts and circumstances of the case giving rise to this petition are as under: A private complaint having been filed under S.200 of the Code, against the respondent, alleging commission of an offence under S.138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), cognizance was taken and process was issued. Trial having taken place, complainant filed an application under S.311 of the Code, to recall PW1 and, to produce and mark a DP note and receipt. The application having been opposed, was dismissed on the ground, (i) that the reason for non-production of the document, which was in the custody of the complainant was not explained and (ii) that the document having not been duly stamped is not admissible in evidence. 3. Sri Arun Shyam, learned advocate, contended that the Magistrate has committed error in passing the impugned order. He submitted that by allowing the application, no prejudice would be caused to the respondent. Reliance was placed on the decision in GODREJ PACIFIC TECH. LTD. Vs. COMPUTER JOINT INDIA LTD., (2009) 2 SCC (Cri) 455. 4. On the contrary, Sri P.M. Narayana Swamy, learned advocate for the respondent made submissions in support of the impugned order and sought dismissal of this petition. 5. Considered the rival contentions and perused the record. 6. S.311 of the Code confers wide discretionary power upon the Court, which should be exercised judiciously, in the matter of summoning any person as a witness or examine the person present. To exercise the power, the Court must satisfy itself, that it was in fact, essential to examine such a witness or to recall him for further examination, in order to arrive at a just decision of the case. 7. In MOHANLAL SHAMJI SONI Vs. UNION OF INDIA, AIR 1991 SC 1346 , Apex Court having examined the scope of Section 311 Cr.P.C., has held that, it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the Court to prove a fact, or a point in issue. 7. In MOHANLAL SHAMJI SONI Vs. UNION OF INDIA, AIR 1991 SC 1346 , Apex Court having examined the scope of Section 311 Cr.P.C., has held that, it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the Court to prove a fact, or a point in issue. However, it has been made clear the Court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence, should ensure that justice is done. It has been held that the Court has a duty to determine the truth, and to render a just decision. It has been further held that the same is also the object of Section 311 Cr.P.C., wherein the Court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or reexamine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because, if the judgment happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. It has been further held as under: “27…..the criminal Court has ample power to summon any person as a witness or recall and reexamine 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.” (emphasis added) 8. In RAJESWAR PRASAD MISRA Vs. In RAJESWAR PRASAD MISRA Vs. STATE OF WEST BENGAL, AIR 1965 SC 1887 , Apex Court while dealing with the power and jurisdiction vested in the Court, with respect to taking additional evidence has observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the Court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the Court must exercise such power. 9. In T. NAGAPPA Vs. Y.R. MURALIDHAR, AIR 2008 SC 2010 , Apex Court has held, that while considering such an application, the Court must not imagine or assume what the deposition of the witness would be, in the event that an application under S.311 Cr.P.C. is allowed and appreciate in its entirety, the said anticipated evidence. 10. In NATASHA SINGH Vs. CENTRAL BUREAU OF INVESTIGATION (STATE), (2013) 5 SCC 741 , with regard to the scope and object of the provision of S.311 Cr.P.C., Apex Court has held as follows: “15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as ‘any Court’, ‘at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.” 11. While passing the impugned order, the learned Magistrate has not kept in view, the settled legal propositions. There is no legal bar against the examination of a witness even at a stage subsequent to recording the statement of the accused in exercise of the power under S.311 of the Code. If an application is made at a belated stage and that would cause prejudice to the accused person, what is important is, if the interest of justice so demands and the witness has to be recalled or even a Court witness is required to be examined, the inconvenience that may be caused by recalling the witness for examination or cross-examination, if it becomes necessary to ensure that there is no prejudice caused to the accused person. The witness should be made available for cross-examination of the opponent. 12. Learned advocate for the petitioner submitted that the petitioner would pay the stamp duty and penalty, on the DP note and receipt, sought to be produced. If that is so, there cannot be any objection for production of the document for being received in evidence, subject to admissibility, relevancy and proof. Learned Magistrate should follow the provisions in Chapter IV of the Karnataka Stamp Act, 1958. The Magistrate, by misdirecting himself has passed the impugned order. If that is so, there cannot be any objection for production of the document for being received in evidence, subject to admissibility, relevancy and proof. Learned Magistrate should follow the provisions in Chapter IV of the Karnataka Stamp Act, 1958. The Magistrate, by misdirecting himself has passed the impugned order. In view of the above, the impugned order is quashed and the learned Magistrate shall consider the application filed by the petitioner afresh, by keeping in view the observations made supra and in accordance with law.