Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1644 (GAU)

Santanu Banerjee v. Three Leaves India (P. ) Ltd.

2018-11-26

AJIT BORTHAKUR

body2018
JUDGMENT : 1. Heard Mr. Z. Alam, the learned counsel for the petitioner and Mr. A.K. Bhuyan, the learned counsel for the respondent. 2. By this petition under section 482/401, Cr.PC, the petitioner has prayed for setting aside and quashing the impugned order, dated 31.3.2018, passed by the learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati, whereby the learned court has rejected the petition under section 311, Cr.PC filed by the accused-petitioner herein. 3. Mr. Z. Alam, the learned counsel for the petitioner, submits that the respondent filed a Complaint Case being CR Case No. 200/2015 under section 138 of the NI Act, 1881 against the petitioner. Mr. Alam further submits that the petitioner had inadvertently accepted certain bank documents, which were not properly certified. Hence, the petitioner submitted a petition on 20.3.2018 under section 311, Cr.PC before the learned trial court to allow the accused-petitioner to examine the bank officials concerned to avoid any ambiguity in the trial. However, on 31.3.2018, the learned trial court, after hearing both the parties, rejected the prayer. Mr. Alam also submits that in order to find out the truth as regards deposits made with the Bank by the petitioner, it is expedient in the interest of justice that the Bank Officials concerned should be allowed to be examined in the case. 4. The learned counsel for the petitioner has relevantly referred to two judgments rendered by the hon'ble Supreme Court in Rajendra Prasad appellant v. Narcotic Cell, (1999) 6 SCC 110 : AIR 1999 SC 2292 ; and Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 . 5. Mr. A.K. Bhuyan, learned counsel for the respondent, submits that as the recording of evidence of both sides has already been over, returning to the evidence stage of the case, would only delay the disposal of the case which is pending since 2015. In Rajerdra Prasad appellant (supra) the hon'ble Supreme Court in paras 6 and 7, as held under: “6. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under section 311 of the Code or under section 165 of the Evidence Act by saying that the court could not fill the lacuna in the prosecution case. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under section 311 of the Code or under section 165 of the Evidence Act by saying that the court could not fill the lacuna in the prosecution case. A lacuna in 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 witnesses. The adage “to err is human” is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 7. Lacuna in the prosecution must be understood as the inherent weakness or 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 over sight 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.” In Rajaram Prasad Yadav (supra) the hon'ble Supreme Court held in para 17 as hereinbelow: 17. While dealing with an application under section 311, Cr.PC read along with section 138 of the Evidence Act, we fell the following principles will have to be borne in mind by the courts: 17.1 Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under section 311 is noted by the court for a just decision of a case? 17.2 The exercise of the widest discretionary power under section 311, Cr.PC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.2 The exercise of the widest discretionary power under section 311, Cr.PC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3 If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and reexamine any such person. 17.4 The exercise of power under section 311, Cr.PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5 The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6 The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7 The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8 The object of section 311, Cr.PC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9 The court arrives at 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. 17.10 Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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. 17.11 The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. 17.11 The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12 The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13 The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14 The power under section 311, Cr.PC 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 6. Be it mentioned here that as derived from the above two judgments the exercise of power under section 311, Cr.PC needs to be resorted to only with the object of finding out the truth which would lead to a just and correct decision in the matter in dispute. 7. The impugned order passed by the learned trial court reveals that the petition was dismissed on the grounds extracted hereinbelow: “(i) The defence had adequate opportunity to examine whoever it wanted but it failed to utilize its opportunity; (ii) The defence has failed to show sufficient cause as to why section 311, Cr.PC should be invoked; (iii) The plea of default of the earlier counsel is without merit; and (iv) Even if section 311, Cr.PC were to be invoked and the bank official summoned, it would be a redundant exercise.” 8. Perusal of the impugned order, dated 31.3.2018, passed by the learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati shows that the petition under section 311, Cr.PC filed by the accused petitioner herein was rejected, inter alia, on specific grounds stated above. The accused-petitioner by the petition, dated 20.3.2018, had prayed for allowing him to examine the Bank Officials as witness on the ground that his statements of accounts were not properly certified showing his payments made to prove the genuiness of the statements and as such, for the purpose of proving the said statements of accounts, the examination of the Bank Officials has become essential for the administration of criminal justice, in the case which is pending under section 138 of the N.I. Act. 9. Therefore, having considered the averments made in the petition and the grounds in the petition cited by the learned trial court, this court finds it expedient that the accused petitioner should be allowed to examine the concern Bank Officials to prove the very fact of his making deposit of certain amounts with the bank authority which were duly accepted, but omitted to certify the same by the Bank Officials as per requirement of section 4 of the Bankers' Books Evidence Act. Therefore, to meet the ends of justice, the impugned order passed by the learned trial Magistrate is hereby set aside with a direction to allow the accused-petitioner to examine the concerned Bank Officials strictly in regard to the authenticity of the statements of accounts, which the petitioner desires to exhibit or already exhibited in the case. 10. With the above directions the petition stands allowed. 11. Both the parties are hereby directed to appear before the learned trial court within 15 days from today. 12. The learned trial court shall make an endeavour to dispose of the case within a period of 1 month from the date of receipt of a certified copy of this order.