PRAYER in Crl.R.C.No.529 of 2004 : Revision is filed under Section 397 r/w 401 of Criminal Procedure Code against the Order made in Crl.M.P.No.314 of 2003 in STR.No.1075 of 2001, dated 03.02.2004 on the file of the learned Judicial Magistrate No.I, Pondicherry as illegal and seeking to set aside the same.
PRAYER in Crl.R.C.No.530 of 2004 : Revision is filed under
Section 397 r/w 401 of Criminal Procedure Code against the Order made in Crl.M.P.No.312 of 2003 in STR.No.1073 of 2001, dated 03.02.2004 on the file of the learned Judicial Magistrate No.I, Pondicherry as illegal and seeking to set aside the same.
PRAYER in Crl.R.C.No.531 of 2004 : Revision is filed under
Section 397 r/w 401 of Criminal Procedure Code against the Order made in Crl.M.P.No.306 of 2003 in C.C.No.555 of 2001, dated 03.02.2004 on the file of the learned Judicial Magistrate No.I, Pondicherry as illegal and seeking to set aside the same.
For petitioner in all the petitions : Mr.K.P.Ananthakrishnan For respondent in all the petitions : Mr.D.Shivakumaran COMMON ORDER The petitioner herein has preferred these Criminal Revisions against the orders, dated 03.02.2004 made in Crl.M.P.Nos.314, 312 and 306 of 2003 on the file of the learned Judicial Magistrate No.I, Pondicherry. Crl.M.P.No.306 of 2003 was filed by the petitioner / complainant under
Section 311 Cr.P.C to recall P.W.1, for the purpose of examining him and Crl.M.P.No.307 of 2003 was filed by the petitioner / complainant under
Section 244 (1) (2) Cr.P.C to receive additional documents.
2. The revision petitioner herein is the complainant, who had filed the petitions before the trial court. The fact of the case is that the petitioner and the respondent had entered into a contract and that was subsequently cancelled by way of a settlement deed, dated 08.09.2000. As per the settlement, the respondent / accused had agreed to pay Rs.3,00,000/- to the petitioner / complainant, for which three post dated cheques, each for Rs.50,000/- were issued by the respondent herein in favour of the petitioner / complainant, bearing Cheque Nos.561700, 561701 and 561702 drawn on United Western Bank Ltd., Hyderabad Branch. But the aforesaid cheques were dishonoured due to insufficient funds in the Bank Account. Hence, the petitioner herein preferred the complaint, under Sections 138 and 142 of Negotiable Instruments Act. In the aforesaid case, the petitioner / complainant himself was examined as P.W.1 and his Banker was examined as P.W.2. According to the petitioner / complainant, on 10.02.2003 during cross-examination, the respondent / accused surprisingly denied his role and knowledge about the issuance of cheque and also his past day to day affairs in the company, hence it was necessitated to file the petitions for recalling P.W.1 and for receiving the documents. The petitioner / complainant has specifically stated the following documents to be received (1) Reply Notice dated 17.03.2001 (2) Letter by the respondent to the petitioner, dated 23.10.2000 and (3) Letter by the respondent to the petitioner, dated 16.01.2001.
3. It is not in dispute that the cases were posted for questioning the accused under
Section 313 Cr.P.C and at that stage, the revision petitioner filed the petitions. According to the petitioner, he wanted to furnish some vital documents, which would go to show that the respondent / accused was responsible for the dishonour of cheques.
4. It is seen that the petitioner had filed petitions under Sections 311 and 244 (1) (2) Cr.P.C, but the same were dismissed by the Court below. Aggrieved by the orders of the Court below, the petitioner has preferred these revision petitions.
5. Mr.K.P.Anantha Krishnan, learned counsel appearing for the revision petitioner submitted that the court below could have allowed the petitions in the interest of justice and in support of his contention, he relied on the following decisions :
1. P.Chhaganlal Daga vs. M.Sanjay Shaw, 2004 SCC (Cri) 183
2. S.R.Sinha vs. Mrinal Sengupta, 2001 SCC (Cri) 1581
6. Per contra, learned counsel appearing for the respondent submitted that there is no error in the impugned order passed by the court below, as prosecution evidence had been closed and the matter was posted for questioning the accused under
Section 311 of Cr.P.C.
7. In P.Chhaganlal Daga vs. M.Sanjay Shaw, reported in 2004 SCC (Cri) 183, the Hon'ble Apex Court has held that though argument was concluded and the case was posted for judgment, since the complainant had moved the trial court for reception of additional materials, in exercise of powers under
Section 311 of the Code of Criminal Procedure, as the materials were necessary for a just and proper decision in that case, it was proper to allow the petition to meet the ends of justice. The Hon'ble Supreme Court held that there is no error on the part of the trial court in allowing the petition filed under
Section 311 Cr.P.C. In the judgment referred to, the Hon'ble Supreme Court held as follows :
"6... The only factor which should govern the court in exercise of powers under
Section 311 should be whether such material is essential for the just decision of the case. Even a reading of
Section 311 of the Code would show that Parliament has studded the said provision lavishly with the word "any" at different places. This would also indicate the widest range of power conferred on the court in that matter..."
8. In Rajendra Prasad vs. Narcotic, reported in 1999 (6) SCC 110, the Hon'ble Apex Court has held 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, 1872 by saying that the court could not 'fill the lacuna in the prosecution case". A lacuna in the 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 prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up."
9. In S.R.Sinha vs. Mrinal Sengupta, reported in 2001 SCC (Cri) 1581, the Hon'ble Apex Court has held that there is no bar against the examination of a witness, even at a stage subsequent to the recording of a statement of the accused and it is held as follows :
"2. It is difficult to appreciate the approach of the High Court in the revision application for the reason that there is no bar against the examination of a witness even at a stage subsequent to the recording of the statement of the accused in exercise of power under
Section 311 of the Criminal Procedure Code..."
10. The aforesaid decisions cited by the learned counsel appearing for the petitioner would clearly show that under
Section 311 of Cr.P.C, the Court is empowered to permit a party to re-open the evidence and mark the additional documents, to meet the ends of justice. Further, it is seen that there is no malafide intention, alleged on the part of the petitioner / complainant in filing the petitions under Sections 311 and 244 (1) & (2) Cr.P.C, to re-open the case, in order to mark certain vital documents and also to receive the said documents for the purpose of marking.
11. It is a well settled proposition of law that while considering petitions filed under Sections 311 and 244 (1) & (2) of Cr.P.C, the orders so passed should meet the ends of justice, which shall not be dismissed summarily on technical grounds. Both the petitions are interconnected.
12. Mr.K.P.Ananthakrishnan, learned counsel appearing for the petitioner / complainant drew the attention of this Court to the copy of the petitions filed before the court below, in the typed set, wherein the petitioner has specifically stated that on 10.02.2003, during the cross-examination, the respondent / accused denied certain facts, which necessitated to file the petitions to recall P.W.1 for the purpose of marking the documents, in order to establish the fact.
13. As contended by the learned counsel appearing for the petitioner / complainant, I am of the view that marking the documents, specified in the petition by recalling P.W.1, would not cause prejudice to the respondent. On the facts and circumstances, there is no possibility to attribute any malafide intention on the petitioner herein for filing the petition. Therefore, the balance of convenience is also in favour of the petitioner / complainant.
14. In the light of various decisions of the Hon'ble Apex Court, I am of the view that the court below has failed to consider the petitions properly, to meet the ends of justice. Hence, these Criminal Revision Petitions are allowed and the order of the trial court is set aside. However, the trial court is directed to provide reasonable opportunity to the petitioner to mark the documents. On the representation made by the learned counsel appearing for the petitioner, since the matter relates to the year 2001, the Court below is directed to dispose the case, according to law on merits, within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed.
tsvn To
1. The Judicial Magistrate No.I Pondicherry.
2. The Public Prosecutor High Court, Madras