Manoj Traders & Kuries (India) Private Limited v. Ajitha Devi and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2014-01-15
Court Decision / Holding: Petition under Section 482 Cr.P.C. to quash is dismissed; the petition under Section 311 Cr.P.C. for recalling the witness was rightly refused by the Magistrate; consequently, the Crl.M.C. is dismissed.
Final Disposition: Petition dismissed; the recall petition and the 482 Cr.P.C. quash petition were both decided against the petitioner.

Parties to the Case

Appellants / Petitioners

Manoj Traders & Kuries (India) Private Limited

Respondents

Ajitha Devi
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• S. Rajeev
• K. K. Dheerendra Krishnan

Counsels for Respondents

• Public Prosecutor Sri. Githesh

Case Synopsis & Summary

Manoj Traders & Kuries (India) Private Limited, the petitioner, seeks to quash proceedings in S.T. No. 84/2011 under Section 138 NI Act, presently being tried by the Judicial First Class Magistrate Court-III, Kochi, via a petition under Section 482 Cr.P.C. The case arises from a cheque dishonor, where the defacto complainant alleged that Rs.75,000 was paid on 2-10-2006 in connection with a kuri, but the debtor defaulted. The trial progressed, with the defacto complainant’s evidence recorded and the 313 Cr.P.C. examination completed. The petitioner moved MP 319/2013 under Section 311 Cr.P.C. to reopen the prosecution’s evidence to prove execution of the cheque; the Magistrate dismissed it on 4.1.2013. The petitioner contends that failure to record this evidence would affect the prosecution and that, under Section 311 Cr.P.C., the court may recall witnesses at any stage for essential evidence. The court cites Mohanlal Shamji Soni v. Union of India to explain the recall power, noting that this recall is permitted even after evidence is closed, but in this case the trial was over and there was no necessity to recall, so the petition was dismissed. The High Court upholds the dismissal, and the 482 Cr.P.C. petition to quash is also rejected. The decision underscores the scope of recall under Cr.P.C. and the court’s discretion to prevent undue delay.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 311 Cr.P.C.Section 482 Cr.P.C.

Legal Doctrines & Maxims

Power of recalling witnesses under Cr.P.C. Section 311 as explained in Mohanlal Shamji Soni v. Union of India (1991) Crl LJ 152 (SC) - court may recall or re-examine even after evidence is closed if essential to just decision.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that after the complainant’s evidence was closed, a petition under Section 311 Cr.P.C. was filed to prove execution of the cheque. Recording such evidence at this stage is essential to the prosecution; invoking Section 311 allows recalling a witness or recalling evidence if essential to a just decision, and failure to do so would affect the case; the recall petition should be allowed to protect the prosecution’s case.

Contentions of Respondents

1st respondent had no representation; the 2nd respondent’s counsel appeared but explicit arguments from the respondents are not detailed in the record. The court proceeded with the petition on the merits of recall and the overall defense as framed by the prosecution.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mohanlal Shamji Soni v. Union of India	[(1991) Crl.LJ 152 (SC)]	Positive	Cited to explain the recall/witness re-examination power under Section 311 Cr.P.C. and that such recall may be permissible even after evidence is closed, subject to the court’s seisin.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935** ## **Crl.MC.No. 1875 of 2013 ()** **--------------------------ORDER IN MP NO. 319/2013 IN ST NO. 84/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - III., KOCHI.** **------------------** ## **PETITIONER / COMPLAINANT :** **---------------------------------------------** **MANOJ TRADERS & KURIES (INDIA) PRIVATE LIMITED A COMPANY REGISTERED UNDER THE COMAPNIES ACT, 1956 AND HAVING REGISTERED HEAD OFFICE AT MANOJ HOUSE MATTAMMAL, THEVARA, KOCHI 13 REPRESENTED BY ITS MANAGING DIRECTOR SOMASEKHARAN NAIR, AGED 60 YEARS, S/O.GOPALAN NAIR RESIDING AT POURNAMI, KONTHURUTHY, ELAMKULAM VILLAGE KANAYANNUR TALUK.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN** ## **RESPONDENTS/ACCUSED/STATE :** **--------------------------------------------------** ## **1. AJITHA DEVI** **D.V.D.L.P SCHOOL, PALLURUTHY, KOCHI 6.** ## **2. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. GITHESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 1875 of 2013 () -------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **------------------------------------------** **ANNEXURE I. COPY OF THE COMPLAINT IN ST. NO.84/2011 DATED 12.10.2009. ANNEXURE II. COPY OF THE PETITION UNDER SECTION 311 CR.P.C FILED BY THE PETITIONER. ANNEXURE III. COPY OF THE WITNESS SCHEDULE FILED BY THE PETITIONER ON 3.4.2013. ANNEXURE IV. COPY OF THE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE III, KOCHI IN MP NO.319/2013 IN ST. NO.84/2011.** **RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE Mn** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C.No.1875 of 2013 ---------------------------------------------Dated this the 15[th] day of January, 2014 ## **ORDER** This Criminal petition is filed under Section 482 Cr.P. for quashing the proceedings in Crl.M.P. 319/2013 in S.T.No.84/2011 on the Judicial First Class Magistrate Court-III, Kochi. 2. The prosecution allegation in the above case was that the defacto complainant filed S.T.No.84/2011 under Section 138 of the Negotiable Instruments Act alleging that on 2.10.2006, a sum of Rs.75,000/- was paid to the 1[st] respondent in connection with a kuri. Subsequently, she defaulted the same and in discharging of that debt, issued a cheque. But, when the cheque was presented for encashment, it was dishonoured and in the circumstance, the above case was filed. The evidence of the defacto complainant was recorded and the questioning of the accused under Section 313 was over. After that, the defacto complainant preferred the Crl.M.P.No.319/13 to re-open the Crl.M.C.No.1875/13 2 evidence in the trial Court. 3. After hearing both sides, the learned Magistrate on 4.1.2013 dismissed the above petition. Aggrieved by that, the defacto complainant approached this Court by filing this criminal petition. 4. Heard both sides. The 1[st] respondent has no representation, after receiving notice. 5. The learned counsel appearing for the petitioner contended that after closing the complainant's evidence, the above petition under Section 311 of Cr.P.C. was filed to prove the execution of the cheque. That was declined. If such an evidence is not recorded at this stage, it will affect the prosecution case. 6. According to Section 311 Cr.P.C., the Court may at any stage of any enquiry, 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 3 Crl.M.C.No.1875/13 such person if his evidence appears to it to be essential to the just decision of the case. The power of recalling witness or reexamine at any stage of proceedings are discussed by the Apex Court in _**Mohanlal Shamji Soni**_ v. _**Union of India**_ [(1991) Crl.LJ 152 (SC)] . The power of Court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence in both sides is closed so long as the court retains seisin of the criminal proceedings. Here, the Court observed that this trial was over and 313 statement of the witness was recorded. There is no necessity for recalling the witness at the fag end of this case. If the petition is allowed at this stage, it will protract the proceedings of the lower Court, which is belated one and hence it was dismissed on that ground. Section 311 Cr.P.C. says that any Court may, at any stage of enquiry, trial or other proceedings if the Court feels, may summon a witness examined or examine in attendance, though not summoned as a witness or recall and re-examine any person already examined. Here, the petition was filed to recall the defacto complainant on the basis of the Crl.M.C.No.1875/13 4 facts stated by the accused in 313 statement. Therefore, there is no illegality or irregularity in the findings of the learned Magistrate. Hence, there is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.1875/13 5 Crl.M.C.No.1875/13 6