Andhra Pradesh High Court - Amravati
M/S.Srivalli Shipping And Transport ... vs The State Of Andhra Pradesh, on 19 June, 2024
Author: K Sreenivasa Reddy
Bench: K Sreenivasa Reddy
APHC010176052024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3327]
(Special Original Jurisdiction)
WEDNESDAY ,THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL PETITION NO: 2543/2024
Between:
M/s.srivalli Shipping And Transport ...PETITIONER/ACCUSED(S)
Private Limited, and Others
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT(S)
and Others
Counsel for the Petitioner/accused(S):
1. K B RAMANNA DORA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. SIVA RAMA KRISHNA KOLLURU
The Court made the following:
K SREENIVASA REDDY,J
2
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL PETITION NO.2543 OF 2024
ORDER :
The Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), is filed against the Order dated 11.03.2024 in Crl.M.P.No.284 of 2024 in S.T.C.No.27 of 2022 on the file of the Principal Civil Judge (Junior Division)-cum-Judicial Magistrate of First Class, Kovvur, whereby petition filed by 2nd respondent/ complainant, under Section 311 CrPC to recall P.W.1 to clear ambiguity in her cross-examination, was allowed.
2. A private complaint was filed by 2nd respondent herein/complainant against the petitioners herein/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act, 1881'), and the same was taken on file as S.T.C. No.27 of 2022 by the learned Magistrate. Trial began in the S.T.C. 2nd respondent herein/complainant was examined as P.W.1 and she was cross-examined by the counsel for the accused. At that stage, the petition in Crl.M.P.No.284 of 3 2024 has been filed in the S.T.C., under Section 311 CrPC, seeking to recall P.W.1 to clear ambiguity in her cross-
examination. By the impugned Order dated 11.03.2024 in the said Crl.M.P., the Court below allowed the petition.
Challenging the same, the present Criminal Petition is filed.
3. Learned counsel appearing for the petitioners/ accused contended that the learned Magistrate ought not to have allowed the petition filed under Section 311 CrPC merely to rectify material admissions made by P.W.1, on the ground of typographical mistakes. According to him, the process adopted is nothing but cut and paste process.
Learned counsel further submitted that P.W.1 affixed her signatures in the deposition in the presence of her counsel and the Presiding Officer, and hence, it cannot be termed either as typographical error or any other mistake which can be taken into account to permit 2nd respondent/ complainant to correct the same. According to him, allowing the Crl.M.P. filed to recall P.W.1 for the said purpose would amount to rectifying the admissions or other 4 material facts already recorded. Hence, he prays to set aside the impugned order and dismiss the Crl.M.P. He relied on a decision in Rajendraprasad v. Narcotic Cell through its officer-in-charge, Delhi,1 wherein it is held thus: (paragraph 8) "8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. 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. 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 the parties performed better."
He also relied on an Order of the High Court of Chattisgarh, Bilaspur dated 16.02.2023 in Cr.M.P.No.334 of 2023, wherein it is held thus: (paragraph 7).
1(1999) 6 SCC 110 5 "7. Reverting back to the facts of the present case, after perusing the statement of the prosecutrix and the application preferred by the Petitioner/accused for recalling the prosecutrix for further cross-examination, it is evident that though the prosecutrix has been examined on 02.06.2022 but after 6 months, this Petition has been filed on the ground that earlier Counsel has not put certain suggestions to her for ascertaining her age, which is not a ground to recall the prosecutrix and the Petitioner has also not filed any foundation or substantial material through which this Court can think over that her cross-examination is necessary. It is well settled 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 is also well settled that recalling can be permitted if the evidence appears to be essential for just decision of the Court and mere observations for ensuring fair trial is not enough unless there are justifiable reasons to show how far the trial would suffer without recalling. Recalling is not a matter of course and the discretion given to the Court has to be exercised judicially to prevent failure of justice."
4. On the other hand, learned counsel for 2nd respondent/complainant contended that during the course 6 of cross-examination of 2nd respondent/ complainant as P.W.1, she denied certain suggestions made by the learned counsel for the petitioners/accused, but due to typographical mistakes, in all the questions, the word 'not' is not typed during the course of typing answers to the said suggestions, and after receipt of certified copy of the deposition and after noticing the same, a Memo was filed to correct the errors, but the same was objected, and hence, the present petition seeking to recall P.W.1 to clear the ambiguity; that the trial Court rightly allowed the petition and there are no grounds to interfere with the impugned order.
He relied on the following decisions.
(a) In Manju Devi v. State of Rajasthan & another2, wherein it is held thus : (paragraph 10) "10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also 2 (2019) 6 SCC 203 7 to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 :
(2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] .
In Natasha Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be 8 exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
***
15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An 9 opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC 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 great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."
(emphasis in original)"
(b) In Zahira Habibullah Sheikh & another v. State of Gujarat & others3, wherein it is held thus: (paragraph 27) "27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side.
The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an 3 (2006) 3 SCC 374 10 improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
(c) In Manu Dev v. xxx & another4, wherein it is held thus: (paragraphs 14 & 19) "14. The aid of Section 311 Cr. P.C. should be invoked 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 is trite that due care should be taken by the Court while exercising power under the 4 2023 SCC OnLine Ker 834 11 section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The Court has very wide power to examine any witness it likes for a just decision in the case. The wide discretionary power upon the Court in this respect is to be exercised judicially and not arbitrarily. The Court shall suggest, by itself that it was in fact, essential to examine a witness or to recall him for further examination in order to arrive at a just decision on the case. The provision is to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts. The Section essentially is intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. (Vide : [Vide : Mohanlal Shamji Soni v. Union of India (1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595), Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999], Mina Lalita Baruwa v. State of Orissa [(2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218], Rajaram Prasad Yadav v. State of Bihar [(2013) 12 14 SCC 461 : (2014) 4 SCC (Cri) 256] and Natasha Singh v. CBI [(2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828].
19. The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as "lacuna", which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected. The function of a criminal Court is the administration of criminal justice and not to concentrate on omissions and errors. This view gets support from the decision of the Apex Court in Rajendra Prasad v. Narcotic Cell ((1999) 6 SCC 110 : AIR 1999 SC 2292)."
5. 2nd petitioner/A.2 is the Managing Director of 1st petitioner/A.1 company. A private complaint was filed by 2nd respondent/complainant against the petitioners/ accused for the offence punishable under Section 138 of the NI Act, 1881 for dishonour of cheque bearing No.341959, dated 11.07.2022 drawn on Union Bank of India, Visakhapatnam for Rs.25,00,000/- issued by 2nd 13 petitioner as Managing Director of 1st petitioner, in her favour, towards part payment of a legally enforceable debt.
The same was taken cognizance as S.T.C.No.27 of 2022 by the learned Magistrate. During the course of trial in the said case, 2nd respondent/complainant examined herself as P.W.1. During the course of her cross-examination, learned counsel for the petitioners/accused before the court below gave certain suggestions and the same were answered by her denying the said suggestions. According to learned counsel for 2nd respondent/complainant, due to typographical mistakes, the word 'not' has not been mentioned in the answers given by her to the questions posed to her in her cross-examination, and as such, it is typed as 'it is true to suggest that...'.
6. A perusal of cross-examination of P.W.1 reveals that in cross-examination, P.W.1 stated 'It is true to suggest that the A.2 never signed on the promissory note and cheque. It is true to suggest that my husband, Ramesh and Venkateswara Rao colluded together and created the promissory notes and cheques and filed false case against 14 accused through me. It is true to suggest that Ramesh and Venkateswara Rao got empty cheques from the accused and filed false cases against accused through me and others. It is true to suggest that myself and my husband invested amounts in the company of the accused and we never gave amount for interest purpose and that the accused paid an amount of Rs.64,00,000/- for full and final settlement, as such no document was executed at the time of investment and that the A1 and A2 are not liable. It is true to suggest that the A.1 is also not liable as the A2 was not director at the time of alleged issuance of cheque and promissory note.
It is true to suggest that the A1 is not liable as he did not issue the alleged cheque or promissory note personally. It is true to suggest that no mediation were held in the presence of the elders.'
7. On a perusal of the material on record, it is the specific case of 2nd respondent/complainant that she paid a total amount of Rs.25.00 lakhsto 2nd petitioner, who is Managing Director of 1st petitioner company, by way of RTGS transfer on various occasions from 03.10.2015 to 15 08.10.2015 to the account number furnished by him. It is her further case that her husband also sent similar amount to the account furnished by 2nd petitioner, and the amounts were lent by way of accounts transfer, they did not insist for any promissory notes or any document from the accused. 2nd petitioner paid interest till end of 2017 regularly, and to discharge the said legally enforceable debt, 2nd petitioner, being Managing Director of 1st petitioner, issued a cheque bearing No.341959, dated 11.07.2022 drawn on Union Bank of India, Visakhapatnam for Rs.25,00,000/- in favour of 2nd respondent, and when the same was presented, it was dishonoured for want of sufficient funds.
8. From a perusal of the cross-examination of P.W.1, one can safely infer to the extent, as rightly pointed by the learned counsel appearing for 2nd respondent, that suggestions, if denied, would be mentioned as 'it is not true to suggest that..'. If the suggestions given by the other side are admitted by the witness in cross-examination, then the sentence would be recorded as 'it is true that....'. In 16 the background of the aforesaid case of the complainant in her complaint and in the light of her evidence in her examination-in-chief, while recording the suggestions by the learned counsel for the accused before the court below and the answers given thereto by P.W.1, the word 'not' was not mentioned in the answers given by P.W.1, which is only due to typographical mistake and the same would not amount to corrections in the deposition. The Presiding Officer of the Court, while recording the deposition of a party or atleast while signing on the deposition, ought to have exercised proper diligence as to whether the answers are being typed correctly or not. Time and again, the Hon'ble Apex Court is consistent in holding that in case of any ambiguity insofar as recording of evidence is concerned and to see that no prejudice would be caused to any one of the parties, Section 311 CrPC contemplates and has the amplitude of powers that the typographical mistakes can be rectified by recalling the witnesses. Insofar as the decisions relied on by the learned counsel for the petitioners, there is no dispute with regard to proposition of law that lacunae in 17 the prosecution case must be understood as the inherent weakness or latent wedge in the matrix of the prosecution case. In the case on hand, a mere typographical error committed by Typist would not amount to lacunae in the prosecution case. To err is human. When typographical mistakes have been crept in, no party in trial can be foreclosed from correcting those errors. The main scope and object of Section 311 CrPC is to enable the Court to arrive at the truth after discovery of relevant facts or obtaining and proper proof of such facts to arrive at a just decision of the case. The said error can be rectified at any stage of the proceedings. Since, apparently, on the face of record, there is typographical errors committed by the Typist, to clear the ambiguity, P.W.1 can be recalled.
Therefore, the trial Court rightly allowed the petition. There is no infirmity. The Criminal Petition is devoid of merits.
9. In the result, the Criminal Petition is dismissed.
18Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
_________________________________ JUSTICE K. SREENIVASA REDDY .06.2024 DRK 19 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL PETITION NO.2543 OF 2024 Date: .06.2024 DRK