High Court of KeralaSingle Judge2022-11-25Petition dismissed

Sujith A.V v. State of Kerala & V.N. Rana Singh

Case / Petition Number:Cr.M.C. No. 8237 of 2022

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-11-25
Court Decision / Holding: Petition dismissed. The High Court held that recall of PW3 as a defence witness cannot be permitted under Section 233(3) Cr.P.C. The orders of the trial court and Sessions Court were upheld, and the Cr.M.C. petition was found to lack merit.
Final Disposition: Petition dismissed

Parties to the Case

Appellants / Petitioners

Sujith A.V. (accused/petitioner)

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
V.N. Rana Singh

Legal Representation & Advocates

Counsels for Petitioners

• M.B.Shyni
• V.R.Anilkumar
• Rajesh Kumar R.
• R. Ramees
• P.K. Erfana Parambadan
• Sarafudheen T.

Counsels for Respondents

• Sri G. Sudheer (Public Prosecutor)

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Cr.M.C. No. 8237/2022) filed by the accused Sujith A.V. under section 482 Cr.P.C. challenging orders in a NI Act case (ST No. 1457/2018) before the Judicial Magistrate of First Class and Sessions Court, Kozhikode. The petitioner seeks to recall and examine the Secretary of Kottur Service Cooperative Bank as a defence witness to explain a financial transaction linked to cheque No. 33752, which purportedly bears on the allegations under section 138 NI Act. The trial court had dismissed the plea to summon this bank official as a defence witness (CMP No. 479/2022) and the Sessions Court dismissed the revision petition (CRP No. 46/2022). The core issue is whether the accused can compel the attendance of a prosecution witness, already examined, and reclassify him as a defence witness under Cr.P.C. 233(3), or whether such recall is permissible only as a discretionary act for essential evidence. The petitioner contends that section 233(3) permits “entering upon defence” and that the bank official’s testimony could elucidate the financial transaction and the true nature of the cheque. The respondents rely on Supreme Court precedent (State of Madhya Pradesh v. Badri Yadav) to support the view that section 233(3) cannot compel prosecution witnesses to become defence witnesses and that recall is discretionary. The Kerala High Court ultimately held that such recall is not permissible, dismissing the petition for lack of merit and upholding the concurrent orders of the lower courts.

Provisions of Law Cited

Cr.P.C. Section 482Cr.P.C. Section 233(3)Negotiable Instruments Act Section 138

Legal Doctrines & Maxims

Entering upon defence under Cr.P.C. Section 233(3).
Prosecution witnesses cannot be compulsorily treated as defence witnesses under Section 233(3); recalling witnesses is a discretionary power of the court.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Section 233(3) Cr.P.C empowers the court to enter upon defence and issue processes to compel attendance of witnesses or production of documents where necessary for defence. He seeks recall of PW3 (Secretary, Kottur Service Cooperative Bank) to explain the transaction evidenced by cheque No. 33752, arguing that this is essential for just decision in the NI Act case. He asserts that the bank official’s evidence is necessary to reveal the true nature of the financial transaction and the defendant’s case.

Contentions of Respondents

The respondents argue that Section 233(3) cannot be invoked to compel prosecution witnesses to become defence witnesses. They rely on State of Madhya Pradesh v. Badri Yadav (and related precedents) to maintain that recall and examination of witnesses already examined is discretionary and not mandatory under 233(3). The Sessions Court and the trial court’s refusals were consistent with this interpretation; the higher court should not interfere with a discretionary decision that avoids vexation or delay and upholds the ends of justice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Madhya Pradesh v. Badri Yadav	AIR 2006 SC 1769; 2006 KHC 842; 2006 (3) KLT 205; (2006) 9 SCC 549	Positive	The decision is cited to support the interpretation that Section 233(3) does not compel prosecution witnesses to be treated as defence witnesses and that the power to recall is discretionary; hence the petition to recall PW3 is not permissible.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944** **CRL.MC NO. 8237 OF 2022** **AGAINST THE JUDGMENT IN ST 1457/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS (SPECIAL COURT)FOR TRIAL OF CASES U/S.138,** ## **NIACT (TEMPORARY)** ## **PETITIONER/ACCUSED:** SUJITH.A.V AGED 46 YEARS PROPRIETOR, M/S. KRISHNA AYURVEDA PHARMACY, DOOR NO. KP 9/689 A., KOLANCHERY, KANNUR DISTRICT. PIN – 670601. BY ADVS. M.B.SHYNI V.R.ANILKUMAR RAJESH KUMAR R. RAMEES P.K. ERFANA PARAMBADAN SARAFUDHEEN T. ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULM, PIN – 682031. 2 V.N.RANA SINGH AGED 56 YEARS, S/O. NARAYANAN KALIYATH, DREAM VILLA HOUSE, AVITANALLUR P.O., NADUVANNUR, KOZHIKODE DISTRICT, PIN – 673614. PUBLIC PROSECUTOR SRI.G.SUDHEER THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 17.11.2022, THE COURT ON 25.11.2022 PASSED THE FOLLOWING: Crl.M.C. No.8237/2022 2 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.M.C.No.8237 of 2022_ ================================ _Dated this the 25[th] day of November, 2022_ ## _**O R D E R**_ This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C’ for short) by the petitioner, who is the accused in S.T.No.1457/2018 on the file of the Judicial Magistrate of First Class (Special Court) For Trial of Cases, Kozhikode, for the following relief: _“to direct the trial court to give an opportunity to the petitioner to examine the Secretary Kottur Service Cooperative Bank with a limited purpose for proving the transaction of the petitioner and the 2[nd] respondent by using cheque No.33752 in the interest of justice.”_ 2. In this petition, the petitioner impugns Annexure 4 order in Crl.M.P.No.479/2022 in S.T.No.1457/2018 dated 04.08.2022 as well as Annexure 5 order in Crl.R.P.No.46/2022 dated 27.10.2022 on Crl.M.C. No.8237/2022 3 the files of the Sessions Court, Kozhikode. 3. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, appearing for the 1[st] respondent. Notice to the 2[nd] respondent stands dispensed with. 4. _Is it permissible to compel and examine the prosecution witness allegedly examined in chief, cross examined and reexamined as a defence witness in tune with the statutory command under Section 233(3) of Cr.P.C ?_ is the querry to be answered. 5. In the case in hand, a petition was filed by the petitioner herein to summon and examine Secretary, Kottur Service Cooperative Bank as a defence witness. As per Annexure 4 order, the learned Magistrate dismissed the same. When the order was challenged before the Sessions Court by way of revision, The Sessions Court also dismissed the same as per Annexure 5 order. 6. It is submitted by the learned counsel for the petitioner that in this case, the petitioner has been defending the allegation of Crl.M.C. No.8237/2022 4 the 2[nd] respondent herein, who is the original complainant before the trial court that the petitioner had committed offence punishable under Section 138 of the Negotiable Instruments Act when cheques for for Rs.6 lakh and Rs.5 lakh (total Rs.11 lakh), alleged to be issued by the accused to the complainant, were dishonoured. It is submitted that Secretary, Kottur Service Co-operative Bank was examined as PW3 and during his examination the details regarding cheque No.33751 alone was asked and during cross examination, PW3 stated that the true nature of transaction could be explained by producing cheque No.33752 also. Accordingly, CMP.No.5102/2021 was filed to recall PW3 and the learned Magistrate Court dismissed the same. According to the learned counsel for the petitioner, now the prayer in Crl.M.P.479/2022 is to examine the Secretary, Kottur Service Co-operative Bank, as defence witness and the same is legally permissible. 7. In this matter, the learned Additional Sessions Judge dismissed Crl.R.P.No.46/2022 relying on a decision reported in Crl.M.C. No.8237/2022 5 [AIR 2006 SC 1769 : 2006 KHC 842 : 2006 (3) KLT 205 : (2006) 9 SCC 549], _**State of Madhya Pradesh v. Badri Yadav**_ ]. In the said decision, the Apex Court considered the impact of Section 233(3) of Cr.P.C. Section 233 deals with `entering upon defence'. Sub section 3 of Section 233 provides that _if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice._ While interpreting sub section 3 of Section 233 of Cr.P.C, the Apex Court held that _S.233 itself deals with entering upon defence by the accused. The application for recalling and reexamining persons already examined, as provided under S.311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and reexamine any person already examined is the discretionary power of the Court in case such evidence appears_ Crl.M.C. No.8237/2022 6 _to it to be essential for a just decision of the case. Under S.233 Cr.P.C the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-s.(3) of S.233 cannot be understood as compelling the attendance of any prosecution witness examined, cross examined and discharged to be juxtaposed as Dws (Defence Witnesses). In the present case PW8 and PW9 were juxtaposed as DW1 and DW2. This situation is not one what was contemplated by sub-s.3 of S.233 Cr.P.C._ 8. Thus the law is very clear on the point that the provisions of sub section 3 of Section 233 Cr.P.C could not be understood as one compelling the attendance of any prosecution witness, who was examined in chief already, cross examined and reexamined, to be examined as a defence witness. In the present case, the prayer that has been canvassed after dismissal of the petition filed to recall PW3 is for the said purpose and, therefore, such procedure cannot be permitted. In view of the Crl.M.C. No.8237/2022 7 matter, the orders impugned do not require any interference and, therefore, this petition lacks merit and is accordingly dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C. No.8237/2022 8 ## **APPENDIX OF CRL.MC 8237/2022** ## PETITIONER'S ANNEXURES |Annexure|1|A TRUE COPY OF THE DEPOSITION OF PW1 IN| |---|---|---| |||S.T.NO. 1457/2018 OF SPECIAL JUDICIAL| |||FIRST<br>CLASS<br>MAGISTRATE<br>COURT,| |||(NEGOTIABLE INSTRUMENTS ACT CASES)| |||KOZHIKODE.| |Annexure|2|A TRUE COPY OF THE DEPOSITION OF PW3 IN| |||ST.NO. 1457/2018.| |Annexure|3|A TRUE COPY OF THE ORDER PASSED BY THE| |||SPECIAL JUDICIAL FIRST CLASS MAGISTRATE| |||COURT (NI ACT CASES) KOZHIKODE DATED| |||09/02/2022 IN CMP.5102/2022.| |Annexure|4|A TRUE COPY OF THE ORDER PASSED BY THE| |||SPECIAL JUDICIAL FIRST CLASS MAGISTRATE| |||COURT, (N.I ACT CASES) KOZHIKODE IN CMP| |||NO.479/2022 IN ST.NO. 1457/2018.| |Annexure|5|A TRUE COPY OF THE ORDER IN CRIMINAL| |||REVISION PETITION NO.46/2022 PASSED BY| |||THE SESSIONS COURT, KOZHIKODE DATED| |||27/10/2022.|