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2020 DIGILAW 135 (KER)

M. S. Murali v. James George

2020-02-04

R.NARAYANA PISHARADI

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JUDGMENT : R. Narayana Pisharadi, J. The petitioner is the accused in the case S.T.No.1038/2012 on the file of the Court of the Judicial First Class Magistrate, Pathanamthitta. 2. The aforesaid case is instituted upon the complaint filed against the petitioner by the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. After the closing of the evidence in the case and after the final hearing of the case, the first respondent (hereinafter referred to as 'the complainant') filed Annexure-G application under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for re-opening his evidence and to allow him to produce an agreement alleged to have been executed by the accused regarding the transaction and to recall and re-examine him to prove the document. He also prayed for examination of an additional witness on his side to prove the agreement. 4. Inspite of vehement objection raised by the petitioner, learned Magistrate allowed the aforesaid application as per Annexure-I order. Aggrieved by the aforesaid order, the petitioner has approached this Court with this petition under Section 482 of the Code. 5. Heard learned counsel for the petitioner. 6. The petitioner has challenged Annexure-I order mainly on three grounds: (1) The complainant cannot be permitted to produce and prove a document which was not mentioned in the complaint or the notice or in his evidence (2) The complainant cannot be permitted to fill up the lacuna in his evidence by adducing additional evidence and if it is permitted, it would cause serious prejudice to the accused (3) At any rate, the application filed for adducing additional evidence is highly belated. 7. There is no merit in the contention that the complainant cannot be permitted to produce and prove a document which was not mentioned in the complaint or the notice or in his evidence. Normally, the complainant has to produce the documents at least before the commencement of examination of the witnesses. But, if there was some omission in that regard, it would not mean that the document cannot be produced subsequently. Normally, the complainant has to produce the documents at least before the commencement of examination of the witnesses. But, if there was some omission in that regard, it would not mean that the document cannot be produced subsequently. Regarding the non-mentioning of the document in the complaint and the notice, it is to be noted that in a prosecution under Section 138 of the Act, the complainant need not mention all facts relating to the original transaction in the complaint or notice, as if in a plaint in a suit. 8. Section 254(1) of the Code states that, if the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. The expression used in this provision is "take all such evidence as may be produced". Therefore, the Magistrate has the discretion to allow the complainant to adduce additional evidence. 9. Regarding the prejudice that may be caused to the accused, it is true that the right of an accused is undoubtedly important. But, so is the right of the complainant. The right of the accused cannot be put at a higher pedestal. A balance has to be struck. A procedural lapse on the part of the complainant cannot be put at par with what may be a substantive violation of the law. 10. The plea of the petitioner that the attempt of the complainant is to fill up the lacuna in evidence by adducing additional evidence also cannot be countenanced. In Rajendra Prasad v. Narcotic Cell, 1999 AIR SC 2292, the Apex Court has observed as follows: "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 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. 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". (emphasis supplied). 11. The document sought to be proved by the complainant is only an agreement relating to the alleged transaction between him and the accused. The case of the complainant is not based on this document but it is based on the dishonoured cheque. Therefore, it cannot be found that the attempt of the complainant in producing and proving the document amounts to an attempt to fill up the lacuna in his case. 12. It is true that the petition was filed by the complainant at a belated stage of the case. But, the complainant has got an explanation that the document was given by him to his advocate and it got misplaced in another case bundle. 13. The plea that it is not proper or permissible to recall a prosecution witness after the final hearing of the case also does not merit acceptance. But, the complainant has got an explanation that the document was given by him to his advocate and it got misplaced in another case bundle. 13. The plea that it is not proper or permissible to recall a prosecution witness after the final hearing of the case also does not merit acceptance. In Rajendra Prasad (supra), the Apex Court has held as follows: "We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision". 14. Section 311 of the Code states that any Court may, at any stage of any inquiry, trial or other proceeding under the Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 15. The first part of Section 311 of the Code is permissive and it gives purely discretionary authority to the Court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the Court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 16. It is well settled that the power conferred under Section 311 of the Code should be invoked by the Court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. 16. It is well settled that the power conferred under Section 311 of the Code should be invoked by the Court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The Court has wide power under this provision to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the Court is of the view that the application has been filed as an abuse of the process of law. 17. There is no illegality in summoning or re-calling a witness after the closure of the evidence in the case. The criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed. The jurisdiction of the Court must obviously be dictated by the exigency of the situation. Fair play and good sense appear to be the only safe guides in the matter (See Mohanlal Shamji Soni v. Union of India, 1991 AIR SC 1346). 18. In the instant case, the learned Magistrate has found that, in order to have a just decision in the case, the application filed by the complainant has to be allowed. The petitioner would be at liberty to raise all his contentions in the court below with regard to the document proposed to be proved by the complainant. In such circumstances, the challenge against Annexure-I order passed by the learned Magistrate fails. The petition is liable to be dismissed. Consequently, the petition is dismissed.