Paul Antony v. Maniankot Advertising Company & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **Crl.MC.No.279 OF 2020(D)** **AGAINST ANNEXURE-A4 ORDER IN CRL.M.P.NO.10421/2019 IN C.C.NO.58/2015 AND C.C.NO.8/2015 OF JMFC (NI ACT CASES), ERNAKULAM DATED 04.01.2020** ## **PETITIONER/ACCUSED:** **PAUL ANTONY AGED 46 YEARS MADONA GLOBAL, 36/1416 K, 3RD FLOOR, AL-FIYA BUILDING, LISSY JUNCTION, OPP.RESERVE BANK OF INDIA, KOCHI, RESIDING AT D PAUL APARTMENT, DOOR NO.1722, MOTHER THERESA LANE, SRM ROAD, ERNAKULAM.** **BY ADV. SRI.M.J.SANTHOSH** ## **RESPONDENT NO.1 & 2/COMPLAINANT:** **1 M/S. MANIANKOT ADVERTISING COMPANY H.I.G-27, NEAR ANDHRA CULTURAL CENTRE, PANAMPILLY NAGAR, KOCHI-682936, REPRESENTED BY ITS MANAGING PARTNER, PAULACHAN MANIANKOT, S/O.M.P.KURIAKOSE, AGED 44 YEARS.** **2 THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SRI P N SUMODU-PP** **THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 14-012020, THE COURT ON 16-01-2020 PASSED THE FOLLOWING:** Crl.M.C.No.279/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.279 of 2020 ----------------------------------------------Dated this the 16[th] day of January, 2020 ## **O R D E R** The petitioner is the accused in the cases C.C.Nos.8/2015 and 158/2015 on the file of the Court of the Judicial First Class Magistrate (N.I Act Cases), Ernakulam. 2. The aforesaid cases are instituted upon the complaint filed against the petitioner by the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The two cases are being tried jointly. 3. When the aforesaid cases reached the stage of final hearing, the first respondent/complainant filed an application as Crl.M.P.No.10421/2019 in the trial court under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for reopening the evidence in the cases and to issue summons to two witnesses for giving evidence and also for Crl.M.C.No.279/2020 3 production of documents. 4. Inspite of vehement objection raised by the petitioner/accused, the trial court allowed the aforesaid application as per Annexure-A4 order. The trial court allowed the aforesaid application stating as follows: “Considering the reasons stated in the petition and for the just disposal of the case, this petition is allowed.” 5. This petition is filed under Section 482 of the Code by the accused in the cases for quashing Annexure-A4 order passed by the trial court. 6. Heard learned counsel for the petitioner. 7. Learned counsel for the petitioner submitted that, if the evidence of the complainant is reopened and if the complainant is allowed to adduce further evidence in the cases, it would cause serious prejudice to the accused as it would amount to filling up of the lacuna in the case of the complainant. 8. The complainant is an advertising company. The case of the complainant is that the accused is the proprietor of 'Madona Global Incorporates' and that the accused had published Crl.M.C.No.279/2020 4 advertisements through the complainant on credit basis and the cheques were issued by the accused towards payment of the bills issued by the complainant. 9. The plea taken by the accused during the trial of the cases is that he is not the proprietor of 'Madona Global Incorporates' and that he had only introduced Mr.Sreekumar Sreevalasan, who is the licensee of 'Madona Global Incorporates' to the complainant. 10. The accused had earlier filed an application for summoning certificate issued by the registering authority under Section 10 of the Emigration Act, 1983 in respect of 'Madona Global Incorporates' and to issue summons to a witness to prove that document. The aforesaid petition was dismissed by the trial court. The accused then approached this Court and challenged the dismissal of the application filed by him in Crl.M.C.No.6123/2019. This Court dismissed Crl.M.C.No.6123/2019. It is pertinent here to note that, while dismissing Crl.M.C.No.6123/2019, this Court had observed that it is the burden of the complainant to establish that the accused is Crl.M.C.No.279/2020 5 the proprietor of 'Madona Global Incorporates' as alleged in the complaint. 11. The witnesses sought to be summoned by the complainant are the Managers of the two banks in which the accused is maintaining account. The documents sought to be proved through these witnesses are the account opening form and other documents showing the address of the accused given in the bank. Evidently, the attempt of the complainant is to prove that the accused has opened accounts in the banks describing himself as the proprietor of 'Madona Global Incorporates'. 12. Considering the facts and circumstances of the case, I find that the examination of the witnesses sought to be summoned by the complainant and the production of documents sought to be proved through such witnesses, are essential to the just decision in the cases. There is no merit in the contention of the petitioner/accused that it would cause serious prejudice to him. It would cause prejudice to him only if he has taken any false plea or defence during the trial of the case. Crl.M.C.No.279/2020 6 13. It is true that Annexure-A4 order passed by the trial court is not a lengthy one. However, the trial court has observed that for the just disposal of the cases, the petition filed by the complainant has to be allowed. 14. It is also true that the petition was filed by the complainant at a belated stage. However, it cannot be found that the purpose of the petition is to fill up the lacuna in the case of the complainant. 15. Section 311 of the Code states that any Court may, at any stage of any inquiry, trial or other proceeding under the 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. 16. The first part of Section 311 of the Code is permissive and it gives purely discretionary authority to the Court and enables it at any stage of inquiry, trial or other proceedings under Crl.M.C.No.279/2020 7 the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the Court (i) to summon and examine or (ii) to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case. 17. It is well settled that the power conferred under Section 311 of the Code should be invoked by the Court only to meet the ends of justice. The Court has wide power under this provision to even recall witnesses for re-examination or further examination, necessary in the interests of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the Court is of the view that the application has been filed as an abuse of the process of law. 18. There is no illegality in summoning or re-calling a witness after closing the evidence in a case. The criminal court Crl.M.C.No.279/2020 8 has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by the exigency of the situation. Fair play and good sense appear to be the only safe guides in the matter. Whether the requirements of justice command the examination of any person would depend on the facts and circumstances of each case (See **Mohanlal Shamji Soni v. Union of India : AIR 1991 SC 1346** ). 19. The plea of the petitioner that the attempt of the complainant is to fill up the lacuna in evidence by adducing additional evidence also cannot be countenanced. In **Rajendra Prasad v. Narcotic Cell : AIR 1999 SC 2292** , the Apex Court has observed 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 by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in_ Crl.M.C.No.279/2020 9 _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 proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”_ (emphasis supplied). Crl.M.C.No.279/2020 10 20. In the aforesaid circumstances, the challenge raised by the petitioner against Annexure-A4 order passed by the learned Magistrate fails. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**THE TRUE COPY OF ORDER IN**| |---|---| ||**CRL.M.C.NO.6123/19 DATED 29.08.2019 OF THE**| ||**HON'BLE COURT.**| |**ANNEXURE A2**|**THE TRUE COPY OF PETITION IN**| ||**C.M.P.NO.10421/19 DATED 23.10.2019.**| |**ANNEXURE A3**|**THE TRUE COPY OF OBJECTION IN**| ||**C.M.P.NO.10421/19 DATED 26.11.2019.**| |**ANNEXURE A4**|**THE TRUE COPY OF ORDER IN C.M.P.NO.10421/19**| ||**DATED 23.10.2019.**| |**RESPONDENTS' EXHIBITS:**|**NIL**| TRUE COPY PS TO JUDGE