Titus Xavier v. Bijin Babu and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** ## **Crl.MC.No. 4505 of 2017 ()** ## **---------------------------** ## **C.M.P. NO. 1899/2016 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT- XII, THIRUVANANTHAPURAM** **CC 418/2014 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT- XII, THIRUVANANTHAPURAM** **------------------** ## **PETITIONER/ACCUSED:** **-----------------------------------** **TITUS XAVIER, S/O LATE M.XAVIER, PROPRIETOR, NEEDS GENERAL STORES, ALL SAINT'S COLLEGE JUNCTION, RESIDING AT DEEPTHI, BEACH P.O, ALLA SAINT'S COLLEGE JUNCTION, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **----------------------------------------------------------------** **1.** - **BIJIN BABU., S/O AYYAPPAN, NEAR OLD C.G. HOSPITAL, MURINJAPALAM PO, MEDICAL COLLEGE., THIRUVANANTHAPURAM, NOW RESIDING AT T.C.8/760(4) "SOUPARNIKA", THIRUMALA P.O, THIRUVANANTHAPURAM-695006** **2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **Crl.MC.No. 4505 of 2017 ()** **---------------------------** ## **APPENDIX** **-----------------------** **PETITIONER(S)' ANNEXURES -------------------------------------** **ANNEXURE 1 TRUE COPY OF THE COMPLAINT, C.C. NO.418/2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-X11, THIRUVANANTHAPURAM DATED 16/9/2014** **ANNEXURE II TRUE COPY OF THE REPLY DATED 5/8/2014** **ANNEXURE 111 TRUE COPY OF THE APPLICATION, C.M.P.NO.1899/2016 IN C.C.NO 418/2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-X11, THIRUVANANTHAPURAM DATED 23/1/2016 ANNEXURE 1V TRUE COPY OF THE NOTICE DATED 25/7/2014** **ANNEXURE V TRUE COPY OF THE ORDER DATED 21/2/2017 IN C.M.P.NO.1899/2016 IN C.C.NO.418/2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE' S COURT-X11, THIRUVANANTHAPURAM. RESPONDENT(S)'ANNEXURES NIL** **-----------------------------------------** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **ALEXANDER THOMAS, J.** ---------------------------------------- Crl.M.C.No.4505 of 2017 ----------------------------------------Dated this the 7[th] day of August, 2017 ## _**O R D E R**_ The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.418 of 2014 on the file of the Temporary Special Court of the Judicial Magistrate of First Class for the trial of N.I.Act Cases, Thiruvananthapuram, instituted on the basis of a complaint filed by the first respondent herein. 2. The dishonoured cheque dated 21.7.2014 is for Rs.1,39,050/-. The case projected by the petitioner in the present petition is as follows : The complainant was an employee in the business concern of the petitioner’s father in law, which was functioning in the name and style of M/s.Needs General Stores. Later, the employment of the complainant was terminated on 18.5.2014 on account of his malpractices and that all his monetary claims were settled by the employer (father in law of the accused). It is asserted by the petitioner that there is no debtor-creditor relationship between the accused and the complainant and further that Annexure-I complaint also does not disclose any debtor-creditor relationship. It is also stated that none of the : **:2::** Crl.M.C.No.4505/17 rudimentary and elementary aspects relating to the alleged transactions which led to the liability in question and the bare essential facts relating to the alleged execution and institution of the cheque have been stated in the complaint and that all those necessary details have been completely suppressed in Annexure-I complaint. In the trial, the complainant has examined himself as PW1. Thereafter, the petitioner had filed Annexure-III application dated 23.1.2016, praying for directions of the trial court to recall PW1 for further cross examination. In Annexure-III application, the petitioner has set forth all the aspects as to how the complainant has misused the blank signed cheque. It has been clearly stated therein that it was noticed that some of the blank signed cheques of the accused kept in the shop were missing. It is stated that the petitioner was directly in charge of managing the affairs of the said shop run by his father in law and that the complainant had access to the cheques of the petitioner kept in the said shop. It is also stated that the complainant has stolen those cheque leaves and has misused the same by presenting it for the complaint. That cheques were kept in the shop, so as to give the same to the suppliers according to the requirements of the business activities in the shop. Annexure-IV notice was issued by the petitioner’s father in law to the complainant and later, Annexure-II reply notice was also sent by the petitioner to the : **:3::** Crl.M.C.No.4505/17 complainant. It is urged that without considering the crucial and relevant aspects of the matter, the trial court as per the impugned Annexure-V order dated 21.2.2017 has rejected the prayer in Annexure-III application to recall PW1 for further cross examination. 3. Though notice has been duly completed on R1/complainant, there is no appearance for that party. 4. Heard Sri.B.Krishna Mani, learned counsel appearing for the petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 5. The main ground set up in Annexure-III application is that PW1/complainant was cross examined by a junior lawyer attached to the Law Chambers of the learned Advocate appearing for the complainant before the trial court and that due to relative lack of experience and inadvertence, the junior lawyer had failed to put the proper defence questions to the complainant at the time of cross examination of PW-1 and thereby valuable rights of the accused to effectively cross examine the complainant was practically defeated. It is further stated that the truth of the defence case set up by the accused will be evident from the documents already produced by him and that overlooking the defence of the accused, the junior counsel has asked wrong questions to the complainant and the substances of such an : **:4::** Crl.M.C.No.4505/17 approach may go against the interest of the defence, etc. It is accordingly the accused has prayed that PW1 may be recalled, so as to enable the learned Advocate appearing for the accused to put proper questions in the cross examination on the basis of the proper defence of the accused and that otherwise, he will be put to irreparable loss and injury. It is also stated by the petitioner that during the course of the employment, the complainant was usually deputed to remit postdated cheque amounts issued to the suppliers and for that purpose, he used to collect cash from the shop and he was expected to remit it to the Bank account of the shop before the date of the cheque. It is stated that the petitioner has already produced the counterfoils remittance slip to the Bank account filled up in the handwriting of the complainant. Only after the filing of this complaint, the petitioner and his father in law have realised the trap in which they were put by the complainant by misusing the above authority by remitting the cash in his account and then transferring it to the account of the proprietor in order to appear that he had lent money to the proprietors. Learned Magistrate has rejected the application filed by the petitioner under Section 311 of the Cr.P.C. mainly on the ground that the petitioner has not shown sufficient and adequate reasons for recalling the witness. Section 311 of the Cr.P.C. reads as follows : Crl.M.C.No.4505/17 : **:5::** _“_ _**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.”_ 6. Construing the provisions in Section 540 of the Cr.P.C., 1973 (which corresponds to Section 311 of the present Code), the Apex Court in the judgment in _**Mohanlal Shamji Soni v. Union of India and another**_ reported in _**1991 Supp (1) SCC 271 = 1991 SCC (Cri.) 595 = AIR 1991 SC 1346**_ has held (paragraph 18, page 280 of the SCC report) that though Section 540 of the old Code (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the : **:6::** Crl.M.C.No.4505/17 court essential to a _just decision of the case_ by getting at the truth by all lawful means and therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It has also been held therein that it is incumbent that due care should be taken by the court while exercising the power under that Section and that it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further that the additional evidence should not be received as a disguise for a retrial or to change the nature of the case either of the parties, etc. 7. In the case in _**Rajendra Prasad v, Narcotic Cell**_ through its officer in charge, Delhi, reported in _(_ _**1999) 6 SCC 110**_ , the Apex Court had occasion to appreciate the legal principles stated in the aforecited _Mohanlal Shamji Soni_ ’s case _(1991 Suppl. (1) SCC 271),_ wherein it has been held in paragraph 8 thereof that lacuna in the prosecution must be understood as the inherent weakness or latent wedge in the matrix of : **:7::** Crl.M.C.No.4505/17 the prosecution case and 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 and 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. Speaking on behalf of the Apex Court, His Lordship Justice K.T.Thomas further held therein that 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 parties performed better. It is further held in paragraph 12 thereof that the contention that the court cannot exercise power of resummoning any witness if once that power was exercised, cannot be accepted and that the power cannot be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments and that the power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. It has been reiterated by the Apex Court in many ruling that the essential approach should be that such evidence is necessary for a just decision by the court, so as to invoke the power under Section 311 of the Cr.P.C. : **:8::** Crl.M.C.No.4505/17 8. True that later the Apex Court has clarified in the judgment in _**State of Haryana v. Ram Mehar and others**_ reported in _(_ _**2016) 8 SCC 762**_ (paragraph 39 thereof) that the doctrine of magnanimity does not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion and it has been applied on the basis of judicially established and accepted principles, etc. 9. In paragraph 8 of Annexure-III application, it has been clearly stated that the complainant was cross examined by the junior counsel attached to the chambers of the Advocate appearing for the accused and out of the lack of experience of the said junior counsel and by his inadvertence, he failed to put proper defence question to the complainant at the time of cross examination. A reading of Annexure-III application would show that the petitioner has put forth certain specific defence contentions, as can be seen from the reading of the same, more particularly from paragraph 7 thereof. The case set up by the defence is that the complainant was an employee of the shop run by the petitioner’s father in law and that for some misconducts his service was terminated on 18.5.2014 and that he had access to the cheques of the petitioner, which was kept in the said shop, which were stolen by him and has been misused by him by presenting the same in the present complaint as if the petitioner had voluntarily executed the cheque dated : **:9::** Crl.M.C.No.4505/17 21.7.2014. The petitioner has also stated in paragraph-7 of Annexure-III application that during the course of the employment, the complainant was usually deputed to remit the postdated cheque amounts issued to the suppliers and for that purpose, he used to collect cash from the shop and was expected to remit it into the account of the shop before the date of the cheque and that only after the institution of the complaint, the accused and his father in law could realise the trap to which they were put by the complainant by misusing the above authority by remitting the cash in his account and then transferring it to the account of the proprietor in order to appear that he had lent money to the proprietor. It is further stated therein that to prove the abovestated factual aspects, the petitioner has also produced counterfoils of the remittance slips to the Bank account filled up in the handwriting of the complainant. Therefore, apart from the issue relating to the mistakes committed by the junior counsel of the accused during the cross examination of PW1, the petitioner has also specifically stated in Annexure-III application about his requirement to produce and mark the abovesaid counter foils of the remittance slips to the Bank account allegedly filled up in the handwriting of the complainant, etc. The defence is certainly entitled to shape up the defence strategy which is best suited to them and so long as the said defence cannot be branded as totally irrelevant to the trial, it : **:10::** Crl.M.C.No.4505/17 will not be proper on the part of any court to place hurdle on the right of the accused to shape up the defence case in the best manner as advised by his counsel. Therefore, the petitioner would urge that recalling of PW1 is highly necessary for producing and marking the counterfoils from the remittance slips to the Bank account allegedly filled up in the writing of the complainant, etc. This aspect of the matter has been completely lost sight of the impugned order rendered by the trial court at Annexure-V. Therefore, the action of the Magistrate in refusing the abovesaid plea made by the petitioner as made out in paragraph 7 of Annexure-III application, is illegal and improper. On this ground alone, the impugned order is liable to be set aside. 10. Further this Court is of the view that neither the complainant nor the trial court would dispute with the fact that the cross examination of PW1 was done by the junior counsel attached to the Law chambers of the Advocate appearing for the accused. The petitioner has candidly stated that due to the lack of experience of the said junior counsel, he could not effectively cross examine PW1. The said version of the complainant that this arose on the lack of experience of the said junior counsel appears to be true. The Apex Court in _Rajendra Prasad_ ’s case (supra), has clearly held in paragraph 8 thereof that an oversight in the management of the prosecution cannot be treated as irreparable lacuna : **:11::** Crl.M.C.No.4505/17 and that no party in a trial can be foreclosed from correcting errors and 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. It has also been observed therein that after all, function of the criminal court is the administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed well, etc. The said magnanimous approach committed by the Apex Court in _Rajendra Prasad_ ’s case (supra), could be applied to the facts of this case as indisputably the mistaken approach occurred due to the relative lack of experience of the junior counsel. It is a matter of common knowledge that an Advocate who is engaged by a party may not be able to reach all the courts in time and due to his busy schedule at times he may be forced to depute a junior counsel and there could be occasions when the junior counsel so deputed may not be well experienced and such mistakes cannot be condemned, so as to foreclose the doors of justice to an accused in a criminal trial. To quote the expression of His Lordship, Justice K.T.Thomas, a magnanimous approach should be adopted in permitting such mistakes to be rectified. For all these reasons, this Court is of the view that the impugned order is liable to be interfered with and that the plea of the petitioner in terms of Annexure-III : **:12::** Crl.M.C.No.4505/17 is only to be allowed. 11. Accordingly, the impugned rejection order at Annexure-V dated 21.2.2017 passed by the learned Magistrate on Crl.M.P.No.1899 of 2016 in C.C.No.418 of 2014 will stand set aside and the prayer in Crl.M.P. for recalling PW1 will stand allowed. The petitioner will produce a certified copy of this order before the trial court, upon which the said court will take necessary action for recalling PW1 for further cross examination by the accused. With these observations and directions, the Crl.Miscellaneous Case stands finally disposed of. **ALEXANDER THOMAS JUDGE** csl