IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.746 OF 2014 BETWEEN:
SMT.VANAJAXI R W/O N.R.RAMESH, AGED ABOUT 51 YEARS, NO.1273/15, 6TH MAIN, 2ND STAGE, RAJAJINAGAR BANGALORE-560 010.
… PETITIONER (BY SRI RAMESH CHANDRA, ADV.) AND:
SMT. VIJAYA RAMANATH W/O. SRI RAMANATH, AGED ABOUT 50 YEARS R/AT NO.1662/16A 2ND CROSS, RAM MOHANPURA NAGAPPA BLOCK BANGALORE-560 021.
… RESPONDENT (BY SRI PRABHUGOUD B. TUMBIGI, ADV.- ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.07.2012 OF THE XIII A.C.M.M., BANGALORE CITY IN C.C.NO.23471/2009 AND SET ASIDE THE ORDER OF THE REVISIONAL COURT IN CRL.R.P.NO.235/2013 DATED 07.11.2013 PASSED ON THE FILE OF XLVIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE HOLDING C/C FTC-XIV, BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R Petitioner is aggrieved by the order dated 23.07.2013 passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru city in CC No.23471/2009 whereby the application filed by respondent (hereinafter referred to as ‘accused’) was allowed and the accused was permitted to re-examine himself as DW.1.
2. Heard learned counsel for the petitioner.
Learned counsel for the respondent is absent. Perused the records.
3. The petitioner herein (complainant) initiated proceedings against the respondent under Section 138 of the Negotiable Instruments Act, 1881. After examination of the complainant, the accused examined herself as DW.1. In the course of the cross examination of DW.1, a Xerox copy of the complaint dated 21.06.2008 said to have been lodged by the accused before Subramanyanagar Police Station was confronted to the accused. DW.1 having admitted the said document, it was marked as Ex.P8. After the closure of the evidence, the matter was set down for arguments. At that stage, accused moved the above application under Section 311 of Cr.P.C. seeking permission for re- examination of DW.1. In the application, it was stated that while preparing for arguments, accused learnt that there was ambiguity in respect of Ex.P8 and therefore, it is just and necessary to recall DW.1 for re-examination. The learned Magistrate allowed the said application.
4. The petitioner herein challenged the said order before the Additional Sessions Judge, Fast Track Court Bengaluru. The Revisional Court by its order dated 07.11.2013 in Revision Petition No.235/2013 confirmed the order of the Trial Court and directed the Trial Court to afford an opportunity to the complainant to further cross-examine DW.1.
5. Learned counsel for the petitioner submits that the accused having admitted the document Ex.P8, there was no scope for re-examination of the witness. Further, there was no ambiguity whatsoever in the answers elicited in the cross-examination of DW.1 as contended by the accused.
6. Section 138 of the Indian Evidence Act, 1872, provides for the order of examination. As per the said provision, re-examination could be directed to the explanation of matters referred to in the cross examination, that is to say, to clear the ambiguities brought out in the course of cross-examination.
7. In the instant case, the document in question was confronted to the witness namely DW-1 in the course of the cross-examination. Answers were elicited through the mouth of the witness with regard to the execution of the said document. In the cross- examination, witness not only admitted the document but also stated that the said complaint was lodged by her in Subramanyanagar Police Station on 21.06.2018. As such, there was absolutely no ambiguity whatsoever in the answers elicited during the cross-examination of DW-1. Under the said circumstances, the court below could not have permitted the witness to be recalled for the purpose of re-examination, as the said order has the effect of granting an opportunity to the accused to take away the effect of the cross-examination of DW-1.
8. Having regard to the evidence brought on record, in my view, the impugned orders have resulted in causing prejudice to the complainant in the case set up before the Court. The same therefore, are liable to be quashed. Accordingly, the petition is allowed. The impugned orders dated 23.07.2013 and 07.11.2013 passed by the court below are set aside. The application filed by the accused under Section 311 of Cr.P.C. is dismissed.
Sd/- Judge AKC/RD