V.R.SASI v. T.J.TOMY and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939** ## **Crl.MC.No. 6038 of 2017 ()** **--------------------------C.M.P.NO.438/2017 IN CC.NO.864/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL --------------------** ## **PETITIONER :** **--------------------** **V.R.SASI, S/O.RAJAPPAN, VETTUVANTHARA HOUSE, NOW RESIDING AT KURUPPUPALATH HOUSE, HOUSE NO. 40/413, KOOTUNGACHIRA, EDAVANAKKAD.** ## **BY ADV. SRI.DENIZEN KOMATH** **RESPONDENT(S):** **----------------------------** **1. T.J.TOMY, S/O JOSEPH, THATTARUPARAMBIL HOUSE, PUTHUVYPU P.O, KOCHI.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS.SRI. T.N. SURESH SRI.V.S.ANU MON SMT.A.S.CHINJU DUTH SMT.DHANUJA VETTATHU R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 6038 of 2017 ()** ## **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------** **ANNEXURE A1 TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP(CRL) NO.722/2016. ANNEXURE A2 TRUE PHOTOCOPY OF THE DEPOSITION GIVEN BY THE PW-1 BEFORE DOCK IN C.C NO. 864/2015 IN THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL.** **ANNEXURE A3 TRUE PHOTOCOPY OF THE INTERLOCUTORY APPLICATION PREFERRED AS C.M.P NO. 438 OF 2017 IN C.C NO. 864 OF 2015. ANNEXURE A4 TRUE PHOTOCOPY OF THE OBJECTION PREFERRED BY THE 1ST RESPONDENT C.M.P NO. 438/2017. ANNEXURE A5 TRUE CERTIFIED COPY OF THE IMPUGNED ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL IN C.M.P NO. 438 OF 2017 IN C.C NO.864 OF 2015 DATED 13.7.2017.** **RESPONDENT(S)' ANNEXURES: NIL --------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ----------------------------- Crl.M.C.No.6038 Of 2017 --------------------------------- Dated this the 5th day of October, 2017. ## O R D E R The order under challenge in this Crl.M.C is the one rendered by the trial court at Anx.A-5 dated 13.7.2017, whereby the trial court concerned (Judicial First Class Magistrate Court, Njarakkal), has dismissed the application filed by the petitioner-accused under Sec.311 of the Cr.P.C for further cross-examination of the complainant and so as to mark certain additional documents, etc. 2. The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.864/2015 on the file of the Judicial First Class Magistrate Court, Njarakkal, instituted on the basis of a complaint filed by the 1st respondent herein. The petitioner had filed Anx.A-3 Crl.M.P.No.438/2017 in the above said C.C.864/2015 and the said application has been rejected by the aforementioned impugned Anx.A-5 order dated 13.7.2017 by the trial court concerned. 3. Heard Sri.Denizen Komath, learned counsel appearing for the revision petitioner-accused, Sri.T.N.Suresh, learned counsel ::2:: Crl.M.C.No.6038 Of 2017 appearing for R-1 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 4. Earlier the defence wanted to adduce the evidence of the accused and in that regard a proof affidavit was filed by the petitioneraccused in lieu of cross-examination at the stage of defence evidence, wherein it was alleged that various complaints have been filed against the complainant by various persons alleging that he has misused documents which were entrusted to him by such persons as security for repayment of various amounts which were advanced by him to such persons in the course of unauthorised money lending business conducted by R-1 complainant, etc. Though specific questions in that regard were put to the complainant during his cross-examination, the documents pertaining to such transactions could not be secured by the accused for being confronted to the complainant during such crossexamination and it was stated that the accused was not in a position to collect such documents at that time, etc. The trial court had received the above said proof affidavit filed by the accused at the defence stage. The 1st respondent had filed O.P(Crl).No.722/2016 under Article 227 of the Constitution of India, challenging the said decision of the trial court in permitting the accused to adduce evidence through proof affidavit in ::3:: Crl.M.C.No.6038 Of 2017 lieu of chief examination. This Court as per Anx.A-1 judgment dated 10.4.2017 allowed the said plea made by the complainant and had set aside the order impugned therein and had directed the trial court to return back the affidavit submitted by the accused and it was made clear that the trial could should permit the accused to ensure that in case, it is so voluntarily opted by the accused to examine himself as a defence witness, then the trial court should allow DW-1 (accused) to tender his oral evidence in terms of Sec.315 of the Cr.P.C. Later, the petitioner-accused submitted Anx.A-3 Crl.M.P.No.438/2017 in C.C.No.864/2015 before the trial court stating that he has obtained certified copies of the proceedings to show that the complainant herein had initiated similar complaints against various persons alleging that he has misused documents which were entrusted to him by such persons as security for repayment of various amounts which were advanced by him to such persons in the course of alleged unauthorised money lending business, etc. Further that, the 1st - respondent complainant in his cross-examination as PW-1 had vehemently denied the initiation of any such complaint proceedings against any other persons and that since certified copies of those documents are pertaining to cases between the complainant and other ::4:: Crl.M.C.No.6038 Of 2017 3rd parties and vice versa, the accused wants to confront those documents to the complainant so as to lead proper evidence in that regard and that the trial court may permit to recall PW-1 complainant so as to subject him to further cross-examination for the above said limited purpose. This was objected to by the complainant by filing Anx.A-4 objections. The complainant would also contend that in the light of Anx.A-1 judgment dated 10.4.2017 rendered by this Court , it is for the accused to produce and mark those documents when he is getting himself examined as DW-1. Further that the accused had already availed the right of cross-examination of PW-1 in a lengthy manner and it was only lack of diligence that he could not produce certified copies of the alleged documents and that he cannot be permitted to protract the proceedings by the accused recalling PW-1 for further cross-examination, etc. The trial court as per the impugned Anx.A-5 order has held that in view of Anx.A-1 judgment rendered by this Court, the petitioner-accused can very well adduce oral evidence by way of chief examination and get certified copies which are relied on by the accused and mark through the accused himself. The trial court also also clearly noted that the respondent has taken a specific contention denying about any previous proceedings that were initiated ::5:: Crl.M.C.No.6038 Of 2017 against him by various persons alleging that he has misused the documents, which were entrusted to him by such persons as security. In this view of the matter, the trial court was of the view that there is no necessity to recall PW-1 and Anx.A-3 application filed by the petitioner was dismissed with liberty to the petitioner to examine himself as witness and to get the documents relied on by him to substantiate his defence marked through such defence examination, etc. 5. It is true that this Court had earlier rendered Anx.A-1 judgment dated 10.4.2017 in O.P.(Crl).No.772/2016 holding that the order passed by the trial court accepting the proof affidavit filed by the accused in lieu of chief examination is illegal and ultra vires inasmuch as the accused is not entitled to adduce evidence through such proof affidavit in lieu of chief examination and that it is for the accused, if he so voluntarily opts, to tender his oral evidence in terms of Sec.315 Cr.P.C. From a reading of the impugned order, it is seen that one of the specific defence taken by the accused is to the effect that the complainant is involved in unauthorised money lending business and that he has misused various security documents collected from many persons and that he has filed many such complaints against other persons, etc. The trial court has also clearly noted in para 8 of the ::6:: Crl.M.C.No.6038 Of 2017 impugned order that the respondent complainant has during his crossexamination as PW-1 has categorically denied about any previous proceedings that were allegedly initiated by him against various persons raising the allegation that he had misused the documents which were entrusted by various other persons as security for repayment of various amounts, etc. The petitioner would aver in Anx.A-3 application that he want to substantiate his defence and mark documents pertaining to similar complaints lodged by the complainant against innocent persons by the alleged misuse of documents entrusted as security with the complainant, etc. It appears that PW-1 vehemently denied about any such proceedings as alleged by the accused during his crossexamination. Even according to the case set up by the petitioneraccused, certain documents which are certified copies of those documents pertaining to different cases preferred in between the complainant and third parties and vice-versa are sought to be marked through the complainant and that those documents should be necessarily confronted to the complainant. Further that since those documents are pertaining to the transaction between the complainant and other parties and vice versa, it will not be proper and right to mark those documents in evidence through the accused. Since that is the case ::7:: Crl.M.C.No.6038 Of 2017 projected by the accused, fairness and natural justice demand that such documents should be confronted to the complainant so that he gets a reasonable opportunity to give his version about such documents before the trial court. This crucial aspect of the matter has been completely lost sight of by the trial court. 6. Sec.311 of the Cr.P.C reads as follows: “Sec.311. Power to summon material witness, or examine person present.- Any Court may, at any state of any inquiry, trial or other proceedings 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.” Construing the provisions in Sec.540 of the Cr.P.C., 1973 (which corresponds to Sec.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 Sec.540 of the old Code (Sec.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 Sec.540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means and ::8:: Crl.M.C.No.6038 Of 2017 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 the prosecution case and the advantage of it should normally go to the ::9:: Crl.M.C.No.6038 Of 2017 accused in the trial of the case, but an oversight 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 rulings 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. ::10:: Crl.M.C.No.6038 Of 2017 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. Thus the discretionary power conferred in Sec.311 Cr.P.C, 1973, 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 and the most underlying principle which regulates the exercise of such discretionary power is as to whether the evidence to be obtained should appear to the court as essential to a just decision of the case by getting truth by all lawful means. It has also to be borne in mind that all the aid of this provision should be invoked only with the object of 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 exercised. 10. On examining the facts of this case, the case projected by the complainant is to the effect that the certified copies of the ::11:: Crl.M.C.No.6038 Of 2017 documents that are relied on by the petitioner-accused are documents in relation to proceedings between the complainant and third parties and vice-versa and the complainant had denied about such proceedings. If such documents concerning the complainant and third parties are marked through the accused, then the complainant will not get any opportunity to be confronted with such documents so that he can tender his version before the court below about such alleged documents and proceedings. Therefore, this can be effectively done only by subjecting PW-1 for further cross-examination so that he is given a reasonable opportunity of being confronted with such documents to enable him to tender his version. Therefore, this Court has no doubt that evidence that is to be obtained in that regard is highly essential for the just decision of the case. If versions of the complainant regarding those alleged documents are not deposed by him, then it would certainly not be in consonance with the principles of fairness and natural justice. In this view of the matter, this Court has no hesitation to hold that the trial court went wrong in denying about the said request of the petitioner. Accordingly, the impugned Anx.A-5 order dated 13.7.2017 rendered by the trial court in Crl.M.P.No.438/2017 in C.C.No.864/2015 will stand set aside and it is ::12:: Crl.M.C.No.6038 Of 2017 ordered that the trial court will pass necessary orders to re-open the evidence to recall PW-1 to subject him to further cross-examination for the aforesaid purpose. The process in this regard should be completed without much delay. After the further examination of PW-1, in case the defence wants to adduce oral evidence, then the same may also be considered by the trial court in accordance with law. Having regard to the pendency of the complaint, it is ordered that the trial court will endeavour to take all reasonable measures to see that the complaint is disposed of within a reasonable time, at any rate, within a period of 2 months from the date of production of a certified copy of this order. With these observations and directions, the Crl.M.C stands finally disposed of. bkn/-