CRIMINAL WRIT PETITION NO. 138/2019

31st January 2020

Petitioner Counsel: Shri S. S. Kakodkar
Respondent Counsel: Shri Mandar Naik
Act Name: Negotiable Instruments Act, 1881 Code of Criminal Procedure, 1973 Constitution of India, 1950

HeadLine : Recalling of witness - When can be allowed

Section :
Section 138 Negotiable Instruments Act, 1881 Section 164 Code of Criminal Procedure, 1973 Section 311 Code of Criminal Procedure, 1973 Section 313 Code of Criminal Procedure, 1973 Section 482 Code of Criminal Procedure, 1973

Cases Cited :
Paras 4, 5, 7, 8, 9: Rajaram Prasad Yadav Vs. State of Bihar and another, 2013 ALL SCR 2747 : (2013) 14 SCC 461
Paras 5, 8, 9: AG Vs. Shiv Kumar Yadav & anr., 2015 ALL SCR 3113 : 2016 (2) SCC 402
Paras 5, 10, 11: Kavita w/o Satish Agrawal Vs. Mahesh Nagari Sahakari, 2018 ALL MR (Cri) 1896 : Cri.W.P. No.1045/2017
Paras 5, 11: Chandrakant s/o Kisanrao Bhurkunde Vs. Dayaram s/o Marotrao Choudhari, Cri.W.P. No.801/2016

JUDGEMENT

1. The petitioner has invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. in the matter of the order dated 10.04.2019 passed by the Court of the Judicial Magistrate, First Class, Ponda pursuant to which the petitioner's application under Section 311 of Cr.P.C. came to be dismissed.

2. Heard Shri S. S. Kakodkar, learned Advocate on behalf of the petitioner who contended that the respondent had filed the complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short hereinafter), for dishonour of the cheque in the amount of `12,72,447/- which was dated 20.04.2016 drawn on the Canara Bank, Fatorda Branch, Margao, Goa unlike the loan amount which was `6,00,000/- sanctioned on 23.02.2008. It was his case that the dishonoured cheque in question did not bear the MICR code and was non negotiable as on the dated of the alleged offence. He adverted to the application moved on behalf of the petitioner under Section 311 Cr.P.C. and submitted that the learned Judicial Magistrate, First Class had clearly ignored the case of the petitioner that the cross examination of the complainant was cryptic and had been done in a casual and perfunctory manner and it lacked on several aspects including the validity, legality, enforceability and limitation of the said cheque and maintainability of the case and the same had also not been brought in during the examination of the defence witness.

3. It was his contention that the petitioner as an accused could not be made to suffer for the acts of his former advocate and otherwise personally not aware that the cross examination of the complainant’s witness and the defence evidence was lacking. Therefore, it was necessary in the interest of justice and for the just decision of the case that the petitioner had to be allowed to recall and re-examine the said witnesses. The learned Judicial Magistrate, First Class was carried away by the plea taken on behalf of the respondent that the petitioner was represented by an advocate who had thoroughly cross examined the complainant’s witnesses and also led the defence evidence. The application was without any basis and was a dilatory tactic to delay the proceedings and pressed for a dismissal thereof.

4. The learned Judicial Magistrate, First Class while passing the impugned order had not at all looked into the case of the petitioner as carved out in the application and failed to address itself to the main issue that the recall and re-examination of the witnesses was essential for the just decision of the case while dismissing the application. The learned Judicial Magistrate, First Class had not looked into the question of the validity of the cheque as also the date of the cheque nor had the learned Judicial Magistrate, First Class rendered any finding that the plea so raised was not sufficient for the just decision of the case. He placed reliance in Rajaram Prasad Yadav Vs. State of Bihar and another, {(2013) 14 SCC 461}.

5. Shri M. Naik, learned Advocate for the respondent submitted that whether a change of a counsel permitted the recall of the witness and while answering the question in the negative placed reliance in AG Vs. Shiv Kumar Yadav & anr.{2016(2) SCC 402}, Kavita w/o Satish Agrawal Vs. Mahesh Nagari Sahakari, {Criminal Writ Petition No. 1045 of 2017} and in Chandrakant s/o Kisanrao Bhurkunde Vs. Dayaram s/o Marotrao Choudhari, {Criminal Writ Petition No. 801 of 2016}. Shri S. S. Kakodkar, learned Advocate in reply submitted that no case whatsoever was made out in AG (supra), nor was the judgment in Rajaram Prasad Yadav (supra), overruled in the said case. There was no conclusion drawn by the trial court that the witness was required for the just decision of the case. On all these parameters it was his contention that the impugned order had to be quashed and set aside and the application had to be allowed.

6. i have considered the submissions of the learned Advocate Shri S. S. Kakorkar for the Petitioner and Shri M. Naik, learned Advocate for the respondent, the judgments relied upon and Section 311 of Cr.P.C. in particular vis a vis the supervisory jurisdiction of this court under Article 227 of the Constitution of India and the inherent powers under Section 482 Cr.P.C. and in the light thereof, decide the petition accordingly. It was the case of the petitioner that the cheque was drawn on Canara Bank, Fatorda branch which was not dishonoured for insufficiency of funds but was rather returned with the remark “kindly contact the drawer/drawee bank and please present again” with the memo of the IDBI Bank dated 24.06.2016. This cheque was apparently not an MICR cheque and as per the contention of Shri S. S. Kakodkar, learned Advocate for the petitioner was not written in the handwriting of the applicant nor was the date written by him and which appeared to have been interpolated by some other person purportedly at his instance. It was admittedly also not returned dishonoured for insufficient funds but with the memo bearing the reason “kindly contact the drawer/drawee bank and please present again”. The cross examination of the complainant apparently lacked on several aspects including the validity, legality and enforceability of the cheque in question and besides it was also not brought out in the evidence of the defence though examined by his former Advocate. The petitioner therefore, also could not be made to suffer for the acts of his Advocate. Moreover, the learned Trial Court had not disallowed the application on the premise that the examination of the witness was not required for the just decision of the case but on the specious premise that it was an attempt by the current advocate for the petitioner to fill up the loop holes in the cross examination and further improve his defence. It was on that ground that the learned Judicial Magistrate, First Class had rejected the application.

7. In Rajaram Yadav (supra), a two judge bench of the Hon'ble Apex Court clearly laid down the principles in the matter of dealing with an application under Section 311 Cr.P.C. and recorded so at paragraphs 17 which are reproduced as below:
“17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read alongwith Section 138 of the Evidence Act, we feel the following priciples will have to be borne in mind by the courts:
17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the obejct of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in the prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily
17.7. The court must satisfy itself that it was in every respect essential to examine such a witess or to recall him for further examination in order to arrive at a just decision of the case.
17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the court to determine the truth and to render a just decision.
17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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.
17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
17.14. The power under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”
This judgment rather supports the contention of Shri S. S. Kakodkar, learned Advocate for the petitioner that the power under Section 311 Cr.P.C. must therefore be invoked by the Court only inorder to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection.

8. In AG (supra) the question before the two judge bench of the Court was whether the recall of the witnesses at the stage when the statement of the accused under Section 313 Cr.P.C.had been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross examined the witnesses having regard to the facts and circumstances of the case. In the brief facts of that case, the respondent as the driver of the Swift Desire cab hired by the victim on 05.12.2014 for returning home from her office, committed rape on her. Her statement was recorded under Section 164 Cr.P.C. on 08.12.2014 and a chargesheet was filed before the Magistrate on 24.12.2014. The accused was not represented by a counsel and was provided Legal Aid and thereafter he engaged his private counsel in place of the legal Aid counsel. In the meantime, the case was committed to the Court of Sessions. Charge was framed on 13.01.2015 while the prosecution evidence commenced on 15.01.2015 and closed on 31.01.2015. The witnesses were duly cross examined by the counsel engaged by the accused. The statement of the accused under Section 313 Cr.P.C. was recorded on 03.02.2015 and on 04.02.2015, an application was made for recall of the victim and formal witness no.23 who booked the cab but the same was rejected and the order was never challenged. Thereafter on 09.02.2015, the accused engaged another counsel who filed another application under Section 311 Cr.P.C. for recall of all the 28 prosecution witnesses which came to be dismissed on 18.02.2015 by the trial Court but which came to be allowed by the High Court by the impugned order dated 04.03.2015 in a petition filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. Even though the specific grounds urged in the application were duly considered and rejected, it was observed that recall of witnesses was deemed proper for ensuring fair trial. The victim as well as the State moved the Apex Court aggrieved by the order of the High Court. During such time, a reference was made to the judgment of Rajaram Yadav (supra) amongst others.

9. In AG (supra), the Apex Court considered Section 311 Cr.P.C., the principles enumerated in Rajaram Yadav (supra). The Hon’ble Apex Court in the facts of the case found that the application before it was nothing but an attempt to protract the trial and infact seek an entire re-trial. There was no change in circumstances except the change in counsel which was no ground to allow the application and in the facts of the case held at paragraph 29 that when the Trial Court and the High Court held that the accused appointed a counsel of his choice and who had been given due opportunity and had duly conducted the cross examination, there was no handicap. No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel and amongst others a mere change of counsel would not be a ground to recall the witness. This judgment is clearly distinguishable on facts and does not buttress the case of Shri Naik, learned Advocate for the respondent to belie the case of the petitioner.

10. In Kavita Agrawal (supra) the petitioner/accused had preferred the petition on rejection of his application under Section 311 Cr.P.C.,1973. It was the contention on his behalf that the trial court had erred in rejecting the application seeking a recall of the witness. It was submitted that on the face of the cross examination conducted it could be inferred that the counsel representing the petitioner had not properly conducted the cross examination. In view of another advocate engaged in the case and it being brought to the notice of the petitioner that there was no proper cross examination, an application under Section 311 Cr.P.C. came to be filed. It was further submitted that affording an opportunity to the petitioner to conduct further cross examination by recalling the witness would help the petitioner to prove her innocence and would cause no prejudice to the respondent/complainant. Quite on the contrary it was contended on behalf of the respondent that the application filed by the petitioner seeking a recall of the witness had been made with an uterior motive to protract the hearing of the case and that a change of the Advocate could not be a ground to entertain such a request. The ground on which the petitioner sought a recall of the witness was not sufficient to entertain the request made under Section 311 Cr.P.C. and that no case was made out to interfere with the order in exercise of the writ jurisdiction.

11. In Kavita Agrawal (supra), a learned Single Judge of this Court considered the factual matrix and held that the order passed by the learned Trial Court was a reasoned order, that the case under the Act had to be decided within a period of three months and looking to the conduct of the case which has spilled over years was of the view that the application was nothing but a tactic to protract the hearing of the case and which conduct was required to be deprecated. In that view of the matter, the learned Judge observed that no case was made out to interfere with the order under challenge and dismissed the petition. This was again in the facts of the case. In Chandrakant Bhurkunde (supra), in the proceeding under Section 138 of the Act, the petitioner had taken a specific plea that the disputed cheques were taken from one Advocate Madan from whom he had obtained the handloan in 2005 as a security deposit alongwith the other receipts which were misused by the complainant in the year 2008-2009 and a complaint was filed against him under Section 138 of the Act. It was also his case that the earlier advocate appearing for him had not conducted the cross examination of the complainant properly and therefore the application under Section 311 Cr.P.C. The learned Trial Court dismissed the application under the premise that it was filed after a gap of about three years from the complainant’s cross examination which was completed by his previous lawyer and that the trial under the Act was required to be decided expeditiously. In the facts of that case, the learned Single Judge found that the petitioner had cross examined the complainant on the lines of their defence and that by no stretch of imagination could it be said that by rejecting his application for recalling of the complainant, the learned Trial Court had caused a failure of justice or had failed to bring on record the additional evidence. This judgment too is distinguishable on facts.

12. In the facts of the present case and at the cost of repetition it was the case of the petitioner that the cheque was not in his handwriting, that it was not an MICR cheque, its use being discontinued over a period of time, there was a serious doubt about its enforceability and legality and that the cross examination of the complainant had not gone properly at the instance of his earlier advocate which fact he wanted to bring through the new advocate on record. Besides the examination of the defence witness too was not properly done in consonance with his plea and on that premise he sought for the recall of the complainant and the defence as it would be necessary to meet the ends of justice. The learned Trial Court while deciding the application did not at all touch upon the aspect whether the recall and further examination of the complainant and the re-examination was necessary in the interest of justice and for the just decision of the case. The learned Trial Court mainly went on the premise that this entire exercise on the part of the petitioner was to fill up the loop holes in his cross examination and to improve his defence.

13. i, therefore, pass the following:-
ORDER
Rule made absolute.
The impugned order therefore, cannot stand the test of scrutiny and is therefore quashed and set aside.
The parties are directed to appear before the learned Trial Court on 17.02.2020 at 14.30 hrs.

Decision : Order accordingly