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2024 DIGILAW 352 (KAR)

K. Nagaraj S/o Krishnappa v. State Bank Of India

2024-06-21

M.NAGAPRASANNA

body2024
ORDER: Petitioner is before this Court calling in question order dated 01-04-2024 passed in C.C.No.642 of 2009 by the I Additional civil Judge (Jr.Dn.) and JMFC., Kolar. 2. Heard Sri M R Nanjunda Gowda, learned counsel appearing for petitioner and Smt Sadhana S Desai, learned counsel appearing for respondent. 3. A complaint comes to be registered against the petitioner by the respondent-State Bank of India invoking Section 200 of the Cr.P.C. before the learned Magistrate. The learned Magistrate takes cognizance of the offences under Sections 405, 406, 409 and 420 of the IPC and issues summons to the petitioner after registering C.C.No.642 of 2009. The issue in the lis does not concern the merit of the matter. In the proceedings, the petitioner files an application under Section 311 of the Cr.P.C. seeking recall of P.W.1, the Branch Manager for further cross-examination. Turning down of this application has driven the petitioner to this Court in the subject petition. 4. Learned counsel for petitioner Sri M. R. Nanjunda Gowda would vehemently contend that the further cross-examination of P.W.1 is imperative to prove his innocence, as it is the last straw of opportunity available to the petitioner and he had been examined in the year 2021 and all other witnesses who came along with P.W.1 have all been examined, it is only the further cross-examination of P.W.1 would prove the innocence with to certain of the documents. 5. Per-contra, the learned counsel Smt. Sadhana S.Desai, appearing for the respondent/State Bank of India would vehemently refute the submission, taking this Court through the application so filed by the petitioner and the objections. It is her contention that there is no indication in the application as to what are the documents that the petitioner wants to confront P.W.1 with, on grant of an opportunity to further cross- examine. She would further submit that the case is 15 year old and the petitioner is now seeking to file an application for recall of P.W.1 only to drag the proceedings. She would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 7. The afore-narrated facts are not in dispute. She would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass as to whether the application under Section 311 of the Cr.P.C. was to be allowed by permitting further cross-examination of P.W.1 or otherwise. In the normal circumstances, an application filed under Section 311 of the Cr.P.C. would be permitted, as it is necessary for discovery of truth, provided this should not become an abuse of the process of the law. The Apex Court has time and again carved an exception in considering the application under Section 311 of the Cr.P.C. The application of the petitioner seeking such recall reads as follows: “…. …. …. 1. The above case is posted for arguments on defence side. While preparing for arguments it is noticed that some of the important documents relating to loan transactions are not placed by the complainant in the case file. Now, the accused intends to confront those material documents to PW1 Sri Sridara Rao (who is the complainant) because those documents are very essential to substantiate the stand taken by the accused in the case, which is filed for an offence punishable under section 420 IPC and other offences. 2. The complainant PW1 Sri Sridara Rao has issued copies of those documents to the accused, hence, it is to be confronted to the PW1 in further cross examination. 3. That the complainant has filed this case against the accused alleging offences under section 409, 405, 406, and 420 IPC and adduced evidence in the case. While cross examining the PW1, the accused was not aware about the existence of those material documents to put them or contradict them to the witness. Later, he came to know the existence of those documents, hence, this application to recall PW1 for further cross examination in the case. 4. Under these circumstances recall of PW1 is essential to the just decision of the case. If the same is not allowed, the accused will be put to loss and injury. Wherefore, the accused prays that this Hon'ble court be pleased to recall PW1 Sri. Sridara Rao for further cross examination on some material documents by allowing this application in the ends of justice and equity.” 8. If the same is not allowed, the accused will be put to loss and injury. Wherefore, the accused prays that this Hon'ble court be pleased to recall PW1 Sri. Sridara Rao for further cross examination on some material documents by allowing this application in the ends of justice and equity.” 8. It is not in dispute that P.W.1 one Shridhar Rao was already cross-examined on all material documents that was in existence at that point in time. It is the case of the petitioner that there is some discrepancy of documents at a later point in time and therefore, he should be permitted to be cross- examined. This is turned down by the concerned Court, by reasoning as follows: “…. …. …. The Counsel for accused has not clearly stated in his application as to what documents he is going to confront to PW-1 if he is recalled for the purpose of his further cross examination. Further, the explanation tendered by the accused regarding not confronting such documents at the early point of time seems to be very vague. No doubt the powers bestowed on this Court under section 311 of CRPC are discretionary and wide enough to recall any person at any stage of the proceeding. At the same time one cannot overlook the trite position of law that section 311 of CRPC cannot be made use of to fill up the lacunas in the case. This case is more than a decade old. The Accused is well aware about this proceeding since the date of service of summons upon him. Even when the charges were framed, the Accused was well aware about the contours and depth of this case. The law acts very harsh upon the one who slumbers over his own interests. Having kept idle for a decade, now the Accused has come up with this application. This clearly exposes the oblique motive of the Accused to elongate the proceedings. Throughout the trial, the Accused has been given a fair opportunity to defend him. That being the case, having heard the arguments tendered by Counsel for Complainant, he has come up with this application to up the lacunas in his defense. This attitude of the Accused highly condemnable. Ergo, this Court plunges into the conclusion that, the Accused has not made out any sufficient grounds to recall PW-1. Accordingly. Point No.1 answered in Negative. That being the case, having heard the arguments tendered by Counsel for Complainant, he has come up with this application to up the lacunas in his defense. This attitude of the Accused highly condemnable. Ergo, this Court plunges into the conclusion that, the Accused has not made out any sufficient grounds to recall PW-1. Accordingly. Point No.1 answered in Negative. POINT NO.2: For the detailed discussions and findings tendered above this quote proceeds to pass the following order: ORDER Application filed by Accused under Sec.311 of CrPC is hereby dismissed with costs of Rs.500/-. For arguments by Counsel for Accused call on 15.04.2024. Sd/- I ADDL.CIVIL JUDGE & JMFC., Kolar.” 9. As submitted by the learned counsel appearing for the respondent/State Bank of India, the reasons so rendered by the concerned Court to reject the application are cogent, in tune with law, as a proceeding which is already 15 year old cannot be permitted to be continued for further number of years, on the pretext that an application under Section 311 of the Cr.P.C. should be allowed. Generally, applications filed under Section 311 of the Cr.P.C. would be permitted, as it is in the process of discovery of truth that one may require production of documents, examination, further examination, cross- examination and further cross-examination. But, that would not mean that the provision is misused for it to become an abuse. The case at hand forms a classic illustration where a 15 year old case is still pending and in those proceedings, an application is preferred seeking further cross-examination. It is too late in the day for the petitioner to further drag the matter on the ruse of pendency of an application under Section 311 of the Cr.P.C. I find the application being filed a misuse and if allowed, would become an abuse of the process of the law. 10. Reference being made, to the judgment of the Apex Court in the case of RAJARAM PRASAD YADAV v. STATE OF BIHAR, (2013)14 SCC 461 , would become apposite, wherein the Apex Court has held as follows: “… … 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 17.1. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel 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 CrPC 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 re-examine any such person. 17.4. The exercise of power under Section 311 CrPC 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 CrPC 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. 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. 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 CrPC 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.” (Emphasis supplied) Later, the Apex Court in the case of RATANLAL v. PRAHLAD JAT, (2017)9 SCC 340 has held as follows: “16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 CrPC is as under: “311. Power to summon material witness, or examine person present.—Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine 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.” 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.” (Emphasis supplied) If the facts obtaining in the case at hand, the order and the submissions made by the learned counsel for the respondent- Bank are taken note of, no fault can be found with the order that is passed by the concerned Court rejecting the application filed under Section 311 of the Cr.P.C. 11. In the peculiar facts of this case, on the score that the matter is awaiting resolution in the Court for the last 15 years, the petition deserves to be rejected and is accordingly, rejected.