Osseous Healthcare Pvt. Ltd. v. Sudheesh K.S. and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** ## **Crl.M.C.No. 188 of 2019** **AGAINST THE COMMON ORDER IN CMP.NO.1048/2018 AND CMP.NO.1050/2018 IN ST NO.373/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY DATED 15-09-2018** ## **PETITIONER/COMPLAINANT:** **OSSEOUS HEALTHCARE PVT. LIMITED 'THIRUVONAM', MANIMALA ROAD, EDAPPALLY P.O., ERNAKULAM, PIN-682024, REPRESENTED BY ITS DIRECTOR. VIPIN CHANDRAN, AGED 53 YEARS BY ADV. SRI.K.N.CHANDRABABU** ## **RESPONDENTS:** **1 SUDHEESH K.S., S/O.N.R.SHAJI, KUTTIKKATTU HOUSE, ERAVINELLOOR P.O., PUTHUPPALLY, KOTTAYAM DISTRICT PIN 686011. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. R1 BY DR.PAULY MATHEW MURICKEN** **R2 BY SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.No.188 of 2019 2** ## **ORDER** The complainant in a prosecution pending on the files of the Judicial First Class Magistrate Court, Kalamassery as S.T.No.373 of 2017 is the petitioner. The prayer in this petition is to quash the common order dated 15.09.2018 passed by the Judicial First Class Magistrate Court, Kalamassery (for short 'the court below') in C.M.P.Nos.1048 and 1050 of 2018 . S.T.No.373/2017 is a prosecution launched by the petitioner herein under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the Act'). 2. CMP Nos.1048 and 1050 of 2018 were filed under Section 311 Cr.P.C seeking to recall PW1 and to mark certain documents produced by the petitioner in evidence. The respondents have filed objection in the matter and the attack mainly was against the relevancy of the documents sought to be produced and received in evidence being photocopies and without proper attestation or certification from the authorities concerned who had issued those. The court below after hearing the counsel representing the parties was declined to grant the relief sought by the petitioner and thereby the applications were dismissed by a common order, under challenge herein. ## **Crl.M.C.No.188 of 2019 3** The aggrieved complainant has approached this Court in the present petition. 3. The reliefs sought in this application are extracted ## herein below: “to quash Annexure-A9 Order dated 15.09.2018, passed in CMPNo.1048/2018 and CMP No.1050/2018 in S.T.No.373/2017 by Judicial First Class Magistrate Court, Kalamassery and direct the Court below to accept the documents and re-examine PW1 as prayed for in the above CMPs, for an effective and complete adjudication of the above case.” 4. Sri.K.N.Chandra Babu advanced arguments on behalf of the petitioner and Sri.Ameer, the learned counsel advanced arguments on behalf of the respondents. According to Sri.K.N.Chandra Babu, the learned counsel for the petitioner, the court below is highly unjustified in dismissing the applications filed under Section 311 Cr.P.C. According to him, CMP No.1048/18 was filed by him under Section 311 Cr.P.C before the court below seeking production and marking of some documents in evidence. In the application filed as above he has specifically averred about issuance of a notice prior to the launching of the prosecution and the failure of the respondents to sent any reply to that notice, countering the statements made by him in the notice. Therefore, there was no scope for him to anticipate that the respondents will deny the authority of PW1 to represent the company. It is also his case that he has ## **Crl.M.C.No.188 of 2019 4** already applied to the Registrar of Companies at Bombay for obtaining certified copies of Form No.32, Articles of Association and Memorandum of Association relating to the Company and those were not received by him at the time when PW1 was examined before the Court. Those documents being relevant for reaching a just and proper decision in the case on hand and therefore those were sought to be received and marked in evidence by filing the application. According to him, the court below did not look into the merits of the pleas raised by him in the application and dismissed the same and therefore the order by which the applications were dismissed is unjust. Accordingly, he seeks to interfere with the common order passed by the court below on 15.09.2018 in the applications filed by him and to set those aside. 5. Sri.K.M.Ameer, the learned counsel representing the respondents has contended that the court below is justified in passing the order under challenge for the reasons stated therein. According to him, the petitioner had ample opportunity to produce the documents alongwith the complaint launched to prosecute the case, in view of the availability of those with the complainant, Company. According to him, the attempt of the petitioner was to protract the matter and to fill ## **Crl.M.C.No.188 of 2019 5** up the lacuna, that has occurred while letting in evidence. According to him, sufficient reasons have not been stated by the petitioner while applying to accept the documents and marking those in evidence by filing CMP Nos.1048/18 and 1050/18 and therefore, the court below was highly unjustified in dismissing the application on hand. Various decisions have also been relied on by the respective counsel in support of their arguments. Before adverting to the contentions raised by the respective counsel it is relevant to have a look at the impugned order. The reasons for dismissal of the applications have been stated in detail by the Judicial First Class Magistrate, Kalamassery in Paragraph 4 of the impugned order and the same is extracted herein below. “4. After hearing both sides and perusing the records, it is evident that the documents sought to be produced in evidence have been in custody of the petitioner herein except, copy of Articles of Association of the company. It is well settled that the complainant has to prove his case before the court albeit a light one, in a case where the offence under section 138 of the Negotiable Instrument Act is alleged. Petitioner has no sufficient reasons to show why the documents sought to be produced were not produced at the time when he was examined. After cross examination, recalling him to rectify the defects in his evidence by adducing further documents under section 311 of the Cr.P.C cannot be permitted. Section 311 of the Cr.P.C cannot be invoked for curing the defects in the evidence adduced by the petitioner herein.” ## **Crl.M.C.No.188 of 2019 6** 6. Therefore, the reasons for dismissal of the applications and declining permission to adduce additional evidence was the non production of the documents at the right time when PW1 was examined. The further reason was that the power under Section 311 Cr.P.C is not meant to be invoked for curing the defects in the evidence adduced by the petitioner. The further reason stated was that the documents sought to be produced in evidence, except the copy of the Articles of Association of the company were available in the custody of the petitioner and therefore, those ought to have been produced earlier. In the backdrop of the said reasoning, it is relevant to have a look at Section 311 Cr.P.C, which is extracted herein below. " **311.Power to summon material witness, or examine person present.-** Any Court may, at any stage of any inquiry, 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 such person if his evidence appears to it to be essential to the just decision of the case." 7. Section 311 Cr.P.C. confers ample power on the courts to 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 provided ## **Crl.M.C.No.188 of 2019 7** the court is convinced that the evidence sought to be adduced additionally is essential to arrive at a just decision in the case. It is also provided that the invocation of the power under Section 311 Cr.P.C can be at the stage of any enquiry, trial or other proceedings of the court. There cannot be any dispute that the additional documents were sought to be marked in evidence during a proceeding under the court. There is no dispute that the applications have been moved in invocation of the power under Section 311 Cr.P.C prior to questioning the accused under Section 313(1)(b) Cr.P.C. It is immediately after the closure of the evidence of the complainant and prior to questioning of the accused Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence on record by the complainant that the applications have been moved, and the common order under challenge was passed. Therefore it is not proper to state that the petitioner has approached the court below with the respective applications seeking the reliefs at a belated stage as observed by the Magistrate in the impugned order. 8. The next question to be looked into is whether the documents sought to be adduced in additional evidence were documents, which are totally unrelated to the case on hand and ## **Crl.M.C.No.188 of 2019 8** about which not even a reference was made in the complaint on hand. For the purpose, this Court has gone into pleadings of the complainant in the complaint filed before the court below to launch the prosecution under Section 138 NI Act, a copy of which is produced along with this petition as Annexure-A4. In Paragraph 1 of Annexure-A4 the complainant was described as a company incorporated under the Companies Act. It is also stated that the company is engaged in manufacturing and marketing of pharmaceutical products like capsules, tablets, ointments, bandages etc. and that the complainant is represented by its Director, Sri.Vipin Chandran. It also contains a further plea that the Director Sri.Vipin Chandran was authorised to represent the company in any court of law in all legal matters by or against the company including the matter relating to the dishonouring of the cheque issued by the respondent herein, to appear, prosecute and defend all actions and proceedings by or against the company, to sign and verify and all plaints, criminal complaints, written statements and other pleadings, applications, petitions or documents to the courts, to deposit, withdraw and receive documents and any money or moneys from the court or from the opposite party or parties either in execution of decree or otherwise and on receipt ## **Crl.M.C.No.188 of 2019 9** of payment thereof, to sign and deliver for the company proper receipts and discharges for the same and also to engage and appoint any solicitor, advocate or advocates or counsel to act and plead and otherwise conduct the case whenever the director thinks proper to do so. It is further averred in Paragraph 3 that he is appointed as a medical sales representative in Osseous Healthcare (P) Ltd. and he was allowed to collect invoice amount from the customer against the purchase of the products from the complainant company. The complainant went on to state that during the period from April 2012 till March 2013, the accused had collected an amount of Rs.1,51,819/- from the customers ie. medical shops and Doctors and the accused is liable to remit the above said amount to the complainant company. The further plea raised was that, without remitting the amount to the company the accused misappropriated the amounts so collected from the customers of the complainant company for his own personal needs and his conduct amounts to cheating, breach of trust and misappropriation. Therefore, necessary pleadings to the effect have been taken by the petitioner herein, in Annexure-A4 complaint, which formed basis for the prosecution to be initiated. With the aforesaid pleadings in mind, the documents ## **Crl.M.C.No.188 of 2019 10** sought to be accepted and marked in evidence by filing the applications under Section 311 Cr.P.C as above were looked into. List of documents has been filed by the petitioner along with the application seeking to accept and receive the documents in evidence, the copy of the same is appended to this proceedings as Annexure-A5. In Annexure-A5 among the documents sought to be marked in evidence, serial Nos.1 to 4 respectively are Form No.32 submitted by the complainant company before the Registrar of Companies, Minutes books of the Director Board Meeting of the complainant Company, Memorandum of Association and Articles of Association of the complainant Company and the copies of invoices issued by the complainant company to the customers from whom the accused collected money and alleged as misappropriated without it being credited to the account of the company. Item No.4 includes documents 30 in numbers, which are copies of invoices pleaded as issued by the complainant company to the customers and the money received by him was failed to be deposited to the complainant company. Item No.5 and 6 respectively are the Certificate of Incorporation dated 10.11.2009 and the consent letter issued by the accused on 05.04.2013. It is relevant to see whether the documents ## **Crl.M.C.No.188 of 2019 11** sought to be marked vide Annexure-A5 are relevant documents or not. The pleadings of the petitioner in Annexure-A4 complaint are already dealt with in detail. The documents sought to be accepted and marked in evidence are documents, wherefrom the Director, who was examined as the person representing the company has gained authority and to establish the transactions wherefrom the issuance and execution of the cheque involved therein was originated. As already revealed from the pleadings in Annexure-A4 extracted hereinabove that those matters have been pleaded and those are crux of the issue involved and liable to be established by the complainant company. It is true that those documents could have been produced by the complainant at an early stage, as put forth by the counsel for the respondent, at the time of filing of the complaint itself. But, the belated invocation of authority under Section 311 has been stated in the application that since reply notice was not sent, a desire was maintained by PW1 in mind that his authority will not be questioned during trial. Moreover, the petitioner has also stated that some of the documents in Annexure-A5 had been applied for and those have not been received by him. Moreover, this Court has observed earlier that, the documents were sought to be produced and marked in ## **Crl.M.C.No.188 of 2019 12** evidence only at a stage when the case was not even posted for defence evidence. Therefore, documents sought to be produced were available with the complainant and a sufficient and satisfactory reason has been stated by him for its non production at an earlier point of time. It is also relevant to notice that, the documents sought to be accepted and marked in evidence are prima facie essential to establish the pleadings raised by the petitioner in Annexure-A4 complaint. It is also worthy to notice that, the documents if not permitted to be produced and marked in evidence by the complainant, it will lead to unfairness and injustice to the complainant. Another aspect important to be noticed was that, the respondent himself has brought on record during cross examination that those documents are available with the complainant. Therefore, PW1 having been confronted with the kind of documents now sought to be produced and marked in evidence and the availability of those with the petitioner having been admitted by him, it has become incumbent on him to produce and mark those in evidence. 9. As already stated, both counsel have cited various decisions before this Court. The learned counsel for the petitioner has made available **Zahira Habibullah Sheikh(5)** ## **Crl.M.C.No.188 of 2019 13** **and Another v. State of Gujarat and Others [(2006) 3 SCC 374]** , wherein the Apex Court has in elaborate terms stated about the object underlying Section 311 Cr.P.C and the authority conferred on the courts and the necessity for invocation of the said power. Those aspects have been discussed in Paragraph Nos. 27,28 and 29 of the Judgment cited supra and those are extracted hereunder for a proper ## understanding of the matter. “ 27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in **Crl.M.C.No.188 of 2019 14** short “the Evidence Act”) are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to crossexamine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to crossexamine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra.” 10. It is evident from the extracts above that the object underlying Section 311 Cr.P.C was that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The power which can be invoked by the court under Section 311 ## **Crl.M.C.No.188 of 2019 15** Cr.P.C was stated as wholly discretionary. The Apex Court has reiterated that the object and purpose behind incorporation of Section 311 into the Code is to bring on record evidence not only from the point of view of the complainant and the accused, but also from the point of view of the orderly society. 11. The decision secondly cited by the learned counsel for the petitioner was **Iddar & Ors. v. Aabida & Anr. [AIR 2007 SC 3029],** wherein it has been held that the power under Section 311 Cr.P.C can be invoked by the court to summon a material witness not only in favour of the accused but also in favour of the prosecution. The Apex Court has held in the case that even if the invocation of power under Section 311 Cr.P.C is to fill up the loopholes in the prosecution case, that does not matter. The decision thirdly cited by the learned counsel for the petitioner is **Sudevanand v. State and connected cases [(2012) 3 SCC 387]** and **U.T. Of Dadra & Nagar Haveli and Another v. Fatehsinh Mohansinh** **Chauhan [(2006) 7 SCC 529]** , wherein the Apex Court has also held in tune with. As per the settled position of law, power of court to summon material witnesses can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision. ## **Crl.M.C.No.188 of 2019 16** The decision cited by the learned counsel for the respondent includes **Narayan Nayak and Others v. State of Orissa [2017 KHC 4021], Asmi Raut v. State of Chhattisgarh [2017 KHC 4691], Vijyadas K.V. v. State of Kerala [2017(4) KHC 91], Parkson Estate & Industries, Cochin and Another v. M/s. Trinity Trading, Kochi and Another [2016 (1) KHC 278] and Ratanlal v. Prahlad Jat and Others [2017 KHC 6690].** Apart from **Ratanlal v. Prahlad Jat and Others [2017 KHC 6690]** , all other cases are decisions rendered by Hon'ble Judges of this Court sitting single and that of Orissa High Court. 12. A glance of those decisions, would make it clear that those are issued by the courts on different factual circumstances. In **Ratanlal v. Prahlad Jat and Others [2017 KHC 6690]** the Apex Court had occasion to consider a case wherein the Trial Court had gone beyond the direction issued by the High Court to consider the matter afresh in the light of the evidence on record and allowed the examination of two more fresh witnesses, thereby directed the Trial Court in the case on hand to proceed with the matter without taking into consideration the evidence recorded from PW4 and PW5 after the order of the High Court. The Apex Court has also held in ## **Crl.M.C.No.188 of 2019 17** the case that the power under Section 311 Cr.P.C is a discretionary power of court to summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall or re-examine any person already examined. Therefore, the common point emanated from the decisions dealt with herein above was that the power under Section 311 Cr.P.C is a discretionary power conferred on the courts to be exercised in a fair and just manner so that ends of justice could be meted out. Therefore, if the courts to which a party has approached seeking invocation of Section 311 Cr.P.C, has to see whether the applications filed was at a much belated stage, or to protract the case on hand or to fill up the loop holes crept into the evidence already adduced or else that the same is required for arriving at a just and proper decision in the case. In the case on hand, the documents sought to be marked are already stated as essential to establish the pleadings of the complainant in the complaint. Therefore, the production and marking of those in evidence cannot be said to be for filling up of lacunae in the evidence already let in. Since the documents were produced at a stage immediately after the closure of the complainant's evidence and prior to examination of the accused under Section 313(1)(b) ## **Crl.M.C.No.188 of 2019 18** Cr.P.C., it cannot be stated that the documents are applied to be produced and sought to be marked in evidence at a belated stage. It cannot also been stated upon a perusal of the documents that those are not required for arriving at a just and proper decision in the case on hand. On the contrary, the documents are found prima facie essential for arriving at a just and proper decision in the case on hand. 13. The learned counsel for the respondents has also contended that since the documents sought to be marked are photocopies and without any proper attestation by people responsible for that, those cannot be permitted to be accepted and marked in evidence. In this connection, this Court is inclined to state that though documents are photocopies of the documents and not properly attested or marked in evidence, it is to be stated with all vigor that by mere acceptance of the documents or mere marking of the documents in evidence those will not be considered as relevant ones and those will not be relied on by the courts. Moreover, at the time of the marking of the documents, the first respondent must also be granted an opportunity to object the same. He can also argue about its relevancy in evidence in the case on hand. **Crl.M.C.No.188 of 2019 19** For the foregoing reasons, this Court is inclined to allow this petition. Accordingly, the common order under challenge is set aside. The court below is directed to allow the applications filed by the petitioner as CMP No.1048 of 2018 and CMP No.1050 of 2018 in S.T.No.373 of 2017 and to permit the petitioner to mark the documents sought to be produced in evidence, subject to the relevancy of those considered at a later stage after conclusion of trial, when it is heard. **Sd/-** ## **MARY JOSEPH** **JUDGE** ttb/NAB **Crl.M.C.No.188 of 2019 20** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** - **A TRUE COPY OF THE RESOLUTION DATED 01.12.2013 PASSED BY THE BOARD OF DIRECTORS OF THE PETITIONER COMPANY.** - **ANNEXURE A2 A TRUE COPY OF THE CONSENT LETTER DATED 05.04.2013 ENCLOSING THE ACCOUNT REGARDING MIS-APPROPRIATION OF THE AMOUNT BY THE 1ST RESPONDENT.** - **ANNEXURE A3** - **A TRUE COPY OF THE CHEQUE DRAWN BY THE 1ST RESPONDENT IN HIS ACCOUNT BEARING NO.106789 DATED 04.10.2013 FOR AN AMOUNT OF RS.1,51,819/- DRAWN ON SYNDICATE BANK, BRANCH AT KOTTAYAM.** - **ANNEXURE A4 A TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT AT ALUVA.** - **ANNEXURE A5 A TRUE COPY OF THE LIST OF DOCUMENTS PRODUCED BY THE COMPLAINANT.** - **ANNEXURE A6 A TRUE COPY OF THE CMP NO.1048/2018 FILED BY THE COMPLAINANT SEEKING RECEIPT OF DOCUMENTS IN EVIDENCE IN S.T.NO.373/2017.** - **ANNEXURE A7 A TRUE COPY OF M.P.NO.1050/2018 FILED BY THE COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY.** - **ANNEXURE A8 A TRUE COPY OBJECTION DATED 09.07.2018 FILED BY THE ACCUSED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY C.M.P.NO.1048/2018 AND C.M.P.NO.1050/2018.** - **ANNEXURE A9 THE CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT AT KALAMASSERY AND IN CMP NO.1048/2018 AND CMP NO.1050/2018 IN S.T.NO.373/2017.** - **RESPONDENTS EXHIBITS: NIL**