Karnataka High Court
M/S. Tpc Techno Power vs Sri. Bunty K Mehta on 14 December, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl..P.No.7173/2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.7173 OF 2020
BETWEEN:
1. M/S. TPC TECHNO POWER
COPORATION (LLP)
HAVING ITS REGISTERED OFFICE
AT: UNIT NO.02, #25-A,
2ND PHASE, PEENYA INDUSTRIAL AREA,
BENGALURU-560 058.
REPTD. BY ITS MANAGING PARTNER.
2. MR. K.S. ASHWATHANARAYANA
MANAGING PARTNER,
M/S. TPC TECHNO POWER
CORPORATION (LLP)
HAVING ITS REGISTERED OFFICE
AT: UNIT NO.02, #25-A,
2ND PHASE, PEENYA INDUSTRIAL AREA,
BENGALURU-560 058.
... PETITIONERS
(BY SRI. RAVISHANKAR C.S., ADVOCATE)
AND:
1. SRI BUNTY K. MEHTA
S/O KIRTI MEHTA,
AGED ABOUT 31 YEARS,
PROPRIETOR,
M/S.F.S.ENTERPRISES,
AT SY.NO.58, ANDRAHALLI MAIN ROAD,
YESHWANTHPURA HOBLI,
BENGALURU-560 091.
Crl..P.No.7173/2020
2
2. MR. ARUN KUMAR
PARTNER
M/S. TPC TECHNO POWER
CORPORATION (LLP)
HAVING ITS REGISTERED OFFICE
AT: UNIT NO.02, #25-A,
2ND PHASE, PEENYA INDUSTRIAL AREA,
BENGALURU-560 058.
... RESPONDENTS
(BY SRI. M.R.BALAKRISHNA, ADVOCATE FOR R1)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C,
PRAYING TO a. SET ASIDE THE ORDER DATED 28.05.2020
VIDE ANNEXURE-A PASSED IN C.C.NO.1643/2015 BY THE
XXVII A.C.M.M., AT BENGALURU AND ETC.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY, THROUGH VIDEO CONFERENCE
THE COURT MADE THE FOLLOWING:
ORDER
1. Sri Ravishankar C. S., learned counsel for petitioner/accused Nos.1 and 2 seeks for two weeks time to comply with the office objections but however, requests for the matter to be taken up due to urgency.
2. Petitioner/accused Nos.1 and 2 are before this Court seeking for setting aside the order dated 28.05.2020 passed in C.C.No.1643/2015 by XXVII Crl..P.No.7173/2020 3 Additional Chief Metropolitan Magistrate, Bengaluru on an application to return the documents exhibited as Exs.P1 to P3 filed by the complainant under Section 311 of Cr.P.C.
3. The petitioner/accused Nos.1 and 2 are also before this Court seeking for setting aside the order dated 28.05.2020 passed in C.C.No.1643/2015 by XXVII Additional Chief Metropolitan Magistrate, Bengaluru on an application filed under Section 311 of the Cr.P.C. filed to recall PW.1 to conduct further examination-in-chief.
4. The petition arise out of the order passed in C.C.No.1643/2015 which reads as under:
"Applications filed by the complainant U/sec. 311 of Cr.P.C seeking permission to lead further chief-examination of PW1 and for return of Ex.P1 to 3 documents are allowed.
No order as to costs."
5. The complainant had filed a case in C.C.No.1643/2015 alleging that there was a Crl..P.No.7173/2020 4 dishonour of cheque to an amount of Rs.2,46,00,000/-. The averments in the complaint referred to the said amount, the sworn statement that was recorded also referred to the said amount.
6. While leading evidence in C.C.No.1643/2015 on 19.08.2015, the complaint had produced a cheque for a sum of Rs.2,00,00,000/- bearing No.211934 dated 08.08.2014 drawn on Canara Bank Peenya Branch, Bengaluru and the same came to be marked as Ex.P1. The legal notices in respect thereto and the acknowledgement thereof were marked as Exs.P2 and P3.
7. Though the said marking and evidence occurred in 2015 and though the mistake has happened in the year 2015, it is only at the time when the final arguments were taken up, the two applications came to be filed in C.C.No.1643/2015 as detailed above, that is, an application for return of the documents marked as Exs.P1, P2 and P3 and an Crl..P.No.7173/2020 5 application for recall of PW.1 to lead further evidence. On enquiry, Sri Ravishankar C. S., learned counsel for the petitioners submits that similar applications were also made in C.C.No.3522/2020.
8. The said applications were objected to by the accused, the learned Magistrate after hearing the parties/counsels has passed a detailed order on 28.05.2020 running into nearly 22 pages. It is the said order which is impugned herein.
9. On enquiry, learned counsel for the petitioners submits that similar order has been passed in C.C.No.3522/2015 on the very same day.
10. Learned Magistrate by a reasoned order after appreciating all the contentions which has been taken up by both the counsels appreciated the fact that the complaint referred to the proper cheque stated in the sworn statement, the mistake has Crl..P.No.7173/2020 6 crept is only in the affidavit in lieu of evidence and marking of the documents. Observing that the accused would always get a chance to cross- examine the witness, allowed the said applications and permitted to return of the documents as also leading of further evidence by recall of PW.1.
11. Sri Ravishankar C. S., learned counsel for the petitioners contends that such an order could not have been passed under Section 311 of Cr.P.C. since the power under the said provision is restricted to summoning of material witnesses or for examination of a person present, there being no such material witnesses being produced, the question of allowing such an application to firstly, return the documents and secondly, de-exhibit the same and thereafter leading of evidence by PW.1 to rectify a glaring defect cannot be allowed. A vested right is created in favour of the accused on account of the default and on defective evidence led by the Crl..P.No.7173/2020 7 complainant and as such accused would be entitled to take benefit of the same. He further submitted that error in the present case is committed by complainant and not by the Court and therefore, such powers cannot be exercised.
12. Heard Sri Ravishankar C. S., learned counsel for the petitioners.
13. A perusal of the documents which has been produced, the application as also the order passed indicates that there were two proceedings, one in C.C.No.1643/2015 as regards a cheque for an amount of Rs.2,46,00,000/- and other in C.C.No.3522/2015 as regards a cheque for an amount of Rs.2,00,00,000/-.
14. As rightly observed by the learned Magistrate, the complaint refers to the proper cheque, the sworn statement also refers to the proper cheque, however, it appears that by inadvertence and on Crl..P.No.7173/2020 8 account of mistake, the cheque in C.C.No.1643/2015 was produced in C.C.No.3522/2015 and vice versa. In order to rectify the said mistake, the complainant though has woken up late, has woken up nevertheless and filed the applications so that the relevant cheques are presented in the correct matter and evidence is led.
15. The contentions of Sri Ravishankar C. S., learned counsel that there is a de-exhibiting of the documents is not borne out by the order of the trial Court, the exhibits P1, P2 and P3 continue to be exhibits in the said matter. What is only done by the Magistrate is the return of documents for the purpose of marking in other case, which does not mean that there is any de-exhibition of a document it would only lead to a conclusion that the same document is exhibited in two matters, such a procedure is not unknown to law and is not Crl..P.No.7173/2020 9 prohibited. A document could be marked in multiple proceedings since there are multiple proceedings initiated where such a document is required to be marked.
16. As regards the contention of Sri Ravishankar C. S., learned counsel that there is a vested right which has been created in favour of the petitioners on account of the default or defect in leading of the evidence and marking of wrong documents by the complainant. The same would have been the case if no application had been filed and the matter was taken up for arguments and concluded where such defect or default would have enured to the benefit of the accused.
17. The complainant as stated above has woken up though late and has filed the necessary application and sought to correct if not rectify the mistakes and defect committed. Such a defect as observed being bonafide and inadvertent, the complainant cannot Crl..P.No.7173/2020 10 be denied an opportunity on the basis of so called vested rights that Sri Ravishankar C. S., learned counsel seeks to agitate before this Court. Accused would always get a right to cross-examine the witness on the documents which have been marked in that matter even as regards the further evidence being led.
18. The last contention of Sri Ravishankar C. S., learned counsel is that the application under Section 311 of Cr.P.C. can be filed only if there is a mistake on the part of Court and not for the default or defect on the part of complainant. Section 311 of Cr.P.C. is reproduced hereunder for reference:
"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 Crl..P.No.7173/2020 11 evidence appears to it to be essential to the just decision of the case."
19. A reading and examination of the above provision would indicate that the same is not restricted to any mistake by the Court, the said provision provides ample power to the Court conducting evidence, at any stage, to summon any person as witness or recall or re-examine any person already examined when it appears to be essential to the decision of the case. The said requirements under Section 311 of Cr.P.C. have been adverted to by the learned Magistrate in the order and the Magistrate though not in uncertain words, the Magistrate has come to the conclusion that applications are required to be allowed for a proper decision in the case.
20. Having considered the submission made by Sri Ravishankar C. S., learned counsel and orders passed by the learned Magistrate, I am of the considered view that there is no requirement of this Crl..P.No.7173/2020 12 Court to exercise its power under Section 482 of Cr.P.C. to intercede in the proper and reasoned order passed by the 27th Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.1643/2015 dated 28.05.2020.
21. Hence, the petition is dismissed.
Sd/-
JUDGE HA/-