IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.4721 OF 2019 BETWEEN:
SRI. A. FRANCIS S/O SRI. J.A. ANTHONY DAS AGED ABOUT 62 YEARS OLD ADDRESS: NO.168/9 NEW RAILWAY COLONY OPP. CANTONMENT RAILWAY STATION VASANTH NAGAR BANGALORE-560 052 PRESENTLY RESIDING AT NO.74 7TH MAIN ROAD, I.T.I. LAYOUT BENSON TOWN BANGALORE-560 046 … PETITIONER (BY SHRI. T.PRAKASH, ADVOCATE) AND:
M/S. CARZON RENT (INDIA) PVT. LTD., (EARLIER KNOWN AS CIPL TRANSPORT SOLUTIONS PVT. LTD.,) NO.12/10, 1ST FLOOR ABOVE VIJAYA BANK MSR MAIN ROAD, MATHIKERE BANGALORE-560 054 REPRESENTED BY ITS FLEET EXECUTIVE MR.S.M. NURUL HUSSAIN PRESENT ADDRESS: NO.165 BAZAAR STREET SOMESWARAPURA, ULSOOR BANGALORE-560 008 ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE IN C.C.NO.24590/2011 FROM THE LEARNED XXI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU COURT BELOW PERUSE THE SAME AND THE IMPUGNED ORDER DATED 12.10.2017 REJECTING THE I.A. FILED U/S.311 OF CR.P.C TO RECALL D.W.1 FOR FURTHER EXAMINATION IN CHIEF TO CLARIFY THE TYPING MISTAKE CREPT IN WHILE RECORDING THE EVIDENCE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner has taken exception to order dated 12.10.2017 in C.C.No.24590/2011 passed by the XXI ACMM, Bengaluru, rejecting his application filed under Sections 91 and 311 of Cr.P.C.
2. Shri T.Prakash, learned advocate for the petitioner submits that petitioner restricts the prayer to rejection of application under Section 311 of Cr.P.C., only. He submitted that the application was filed to recall accused for further examination as a typographical error had crept in.
3. I have carefully considered the submission of the learned advocate for the petitioner and perused the records.
4. In the application filed under Section 311 of Cr.P.C., it is stated thus;
“12. Coming to another application filed by accused U/s.311 of Cr.P.C., seeking permission to lead him further evidence to clarify the evidence given in his cross-examination that is to say in his cross-examination it is typed as “it is true that I am liable to pay the cheque amount. I have issued the cheque in favour of complainant”. He contended that he specifically denied suggestion made by complainant’s counsel, but said mistake appears to have crept in his deposition due to improper hearing of the dictation by the typist or due to oversight or inadvertence.”
(Emphasis supplied) 5. Learned Trial Judge has rejected the said application by recording that whether the said statement is a stray statement or a clear admission, is to be ascertained at the time of his evidence. Learned advocate for the petitioner urged that in the light of specific stand taken by the accused that he is not liable to pay the amount mentioned in the cheque issued by him, what is recorded in the evidence on 28.03.2017 runs counter to his stand and therefore requires a clarification.
6. Learned Trial Judge has held that the evidentiary value of the statement, which the accused has sought to clarify, by filing the instant application and recalling witness would be decided after appreciating the evidence in its entirety at the time of judgment. The said evidence was recorded on 28.03.2017. To recall the witness to clarify the admission, at this point of time, would amount to permitting the accused to again change the stand. Learned Trial Judge having held that the evidentiary value of the said statement would be decided after appreciating the evidence in its entirety, no exception can be taken to the view taken by the learned Trial Judge. In the circumstances, this petition fails and it is accordingly dismissed.
7. In view of dismissal of the petition, I.A.No.1/2019 does not survive for consideration and the same stands disposed of.
No costs.
Sd/- JUDGE AV