This is an application filed by the petitioner who is the first accused in C.C.No.25/2009 pending before Judicial First Class Magistrate Court, No-II, Haripad to set aside the order passed by the learned magistrate in Crl.M.P.No.3964/2012 pending before that court.
2. It is alleged in the petition that petition is the first accused in C.C.No.25/09 pending before Judicial First Class Magistrate Court, No-II, Haripad. The case of the prosecution was that forging signature of the de facto complainant who was examined as PW4, a false power of attorney was created by first accused with connivance of the other accused persons and executed certain documents by producing that alleged forged power of attorney and thereby the accused have committed the offence punishable under Sections 468, 471, 420 and 34 of Indian Penal Code. The case was registered on the basis of the complaint given by the de facto complainant and after investigation, final report was filed and it was taken on file as C.C.No.25/2009. The case was was posted for evidence.
Since Cws 1 and 2 were out of station, Cws 3 & 5 were examined as PWs 1 & 2. CW2 was examined as PW3 and CW1 was examined as PW4. But during trial, no sufficient opportunity was given to first accused to cross examine Cws 1 & 2. So, he filed Annexure 1 petition for recalling PW3 & 4 for further cross examination. But that petition was dismissed by the learned magistrate by Annexure 2 impugned order which is being challenged by the petitioner by filing this petition.
3. Considering the allegations made in the petition, this court felt that the petition can be disposed of at the admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor dispensing with notice to the second respondent after getting a report from the learned magistrate about the present stage.
4. Accordingly, a report has been called for and the learned magistrate sent a report which reads as follows:
“CC.25/2009 on the file of Judicial I Class Magistrate-II, Haripad was filed against accused for the offences punishable under Sections 468, 471 and 420 of Indian Penal Code. PW1 to PW6 were examined on the side of the prosecution. After closing prosecution evidence, accused was questioned under Section 313 Cr.P.C. Thereafter the case was posted for defence evidence. Accused filed witness schedule on 29.04.2014. One witness on the side of the accused was present on 12.05.2014. But the witness is bound to appear on 27.05.2014 on the request of accused. Now the case stands posted to 27.05.2014 for the appearance of the defence witness.”
5. Heard both sides.
6. The Counsel for the petitioner submitted that the case of the prosecution was that the petitioner had forged the signature of the de facto complainant and created a forged power of attorney alleged to have been executed by him in favour of the petitioner herein and using that power of attorney, he had executed certain documents. When the case was posted for evidence, the presence of Cws 1 & 2 could not be procured immediately. So, the magistrate examined Cws 3 and 5 who were present on that day as PW1 & PW2. Later, when Cws 1 and 2 came to India, the case was posted for their examination and certain documents were summoned from the Registrar's office and thereafter, CW2 was examined as PW3 and CW1 was examined as PW4. Though he was cross examined, certain aspects could not be brought out on the basis of the documents produced. So, it has become necessary for the petitioner to file the application to recall them to elicit certain facts. So, he filed the application and the reasons stated by the lower court for dismissing the application are not sustainable in law. If PWs 3 & 4 were not recalled, he will be prejudiced as well.
7. On the other hand, the learned Public Prosecutor submitted that sufficient opportunity has been given to defence Counsel to cross examine and in fact PWs 3 & 4 were cross examined at length as well on these aspects. The things which he wants to prove can be proved by adducing other evidence as well.
8. It is an admitted fact that when the de facto complainant came to know that a forged power of attorney was created by the petitioner who is first accused forging his signature and created some documents in respect of his property, he filed a complaint, on the basis of which, a crime was registered and after investigation, final report was filed against 3 accused persons including the petitioner alleging commission of the offences under Sections 468, 471, 420 and 34 of Indian Penal Code. It is also an admitted fact that after framing charges, the case was posted for evidence and summons were issued to the witnesses and Cws 1 & 2 who are the son-in-law and daughter of the petitioner were not present as they were abroad and the witnesses present namely Cws 3 & 5 were examined as PWs 1 & 2. Thereafter, when coercive steps were taken to get the presence of Cws 1 & 2, they flied down from abroad and since certain documents were not obtained from the Registrar's office, examination of CW1 was postponed and CW2 was examined as PW3 and she was subjected to cross examination as well. Thereafter, after getting the documents from the Registrar's office, CW1 was examined as PW4 and it is seen from the order of the learned magistrate that the cross examination started at 4.30 p.m and ended at 6.15 p.m considering the fact that the witness will have to go abroad as he had come for giving evidence for this case alone. So, it is clear from this that it immediately after the witness had gone that the petitioner had filed the application for recalling these witnesses for the purpose of further cross examination. On going through the impugned order passed, it is seen that sufficient opportunity has been given to the defence Counsel to cross examine the witnesses namely PWs 3 & 4. Further, the case of the petitioner was that the power of attorney was executed by PW4 from abroad and it was sent through one Abdul Rasheed and it was handed over to him and on the basis of that power of attorney, the documents were executed. If that be the case, he can prove the handing over of the power of attorney and execution of the power of attorney by PW4 through examining the person who brought the power of attorney and if there are any witnesses to the power of attorney, by examining those witnesses as well. The fact that other documents were executed by using the power of attorney is not in dispute. So, under the circumstances, once PW4 was cross examined on the basis of the documents already produced, there is no necessity for recalling him again and that will cause only hardship to the person who came to court to give evidence from abroad and after left abroad after giving evidence as well. Further, the petitioner can prove his defence by examining other witnesses to prove the execution of the disputed power of attorney by examining witnesses as well. So, under the circumstances, I don't find any illegality in the order passed by the learned magistrate dismissing the application for recalling PWs 3 & 4 for further cross examination as sufficient opportunity having been availed by the defence Counsel to cross examine them thoroughly. So, there is no merit in the petition and the same is liable to be dismissed.
In the result, the petition is dismissed. It is made clear that this will not be a bar for the defence to adduce evidence to prove their contentions except by recalling PWs 3 & 4 as a defence witness later.
With the above observation, the petition is dismissed.
Office is directed to communicate this order immediately to the court below as the case is now posted for defence evidence.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge