Andhra HC (Pre-Telangana)
K. Chokka Rao vs A. Veerabhadra Rao And Another on 13 November, 1998
Equivalent citations: 1999(2)ALD239, 1999(1)ALD(CRI)573, 1999(1)ALT(CRI)159, 1999CRILJ1097
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER
1. Since the question involved in these cases is one and ths same, they are being disposed of by this common order.
2. Petitioner and the respondents in both the Criminal Revision Petitions are same. Criminal Revision Petition No.1135 of 1997 is filed against the order dated 24-11-1997 in Crl. MP No.5596 of 1997 in CC No.367 of 1997 on the file of XV Metropolitan Magistrate, Hyderabad and Criminal Revision Petition No. 1136 of 1997 is filed against the order dated 24-11-1997 in Crl. MP No.5597 of 1997 in CC No.368 of 1996 on the file of the XV Metropolitan Magistrate, Hyderabad. These petitions were filed under Section 311 Cr.PC to recall PW3 to mark the certificate issued by the officer in Indian Bank, Begumpet Branch Hyderabad, in both the above cases, to establish certain facts in the cases.
3. For the sake of convenience the facts in Criminal Revision Case No.l 135 of 1997 are taken for the disposal of both the Revision Cases.
4. In the main case the prosecution's evidence was already closed, and the case was posted for 313 Cr.PC examination. At that stage this application is filed. It is pertinent to note that similar application was filed in Crl. MP No.2452 of 1997 to recall PW1 for making the said document. The learned Magistrate had dismissed the same holding that it amounts to filling the lacuna in the complainant's case. Against the said order the petitioner herein had preferred Criminal Revision CaseNo.172 of 1997 and the learned Sessions Judge dismissed the revision upholding the order of the trial Court. The Court below had categorically held that the petitioner by marking the document through PW1 is attempting to fill up the lacuna in the case. No further steps were taken against that order.
5. The present application is filed to recall PW3, a Bank officer instead of PW1 as in the previous Crl. MP 2452 of 1997 to mark the self same document. When the said applications are dismissed the revisions are filed.
6. Learned Counsel for the petitioner Sri M. Narasimha Reddy submitted that the Court has wide power under Section 311 Cr.PC to recall any witnesses and reexamine at any stage of the trial in the interests of the justice. In support of his contention he relied on a judgment in Jamatraj v. State of Maharashlra, . The Apex Court considering the scope of Section 540 of Criminal Procedure Cod, 1898, which is equivalent to Section 311 Cr.PC of the present Code, has held that Chapter 21 of Cr.PC (1898) does not restrict the powers of criminal Court under Section 540 Cr.PC and that Section 540 Cr.PC and Section 165 Evidence Act, between them, confer a wide discretion on the Court to act as the exigencies of justice require. It is also held that Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates and that the section is in two parts. The first part gives a discretionary power but the latter part is mandatory.
7. Learned Counsel for the petitioner also relied upon a decision in Kotua Marhmdeyulu v. Republic of India, 1989 Crl.LJ 238, In that case the prosecution's evidence was closed and it was posted for arguments. At that stage it was discovered that sanction to prosecution was not marked. An application was filed under Section 311 Cr.PC to summon the sanctioning authority to mark the sanction. The sanction order was already on the file of the Court. Under those circumstances, the trial Court Judge came to the conclusion that the evidence of sanctioning authority to mark the sanction order was essential and summoned the sanctioning authority lo mark the document. This action was upheld by the Court. The Supreme Court in Hussain Umar v. Dalipsmsfgi, , has held, "As to the last question, we find that examination-in-chief of FW50 AH commenced on October, 7, 1960 and was concluded on October, 10, 1990. His cross-examination commenced on August 21, 1961 and was concluded on September 4, 1961. On March 6, 1962 and again on June 21, 1962 the defence applied for recalling All for cross-examination. The learned Magislrale rejected the two applications. According to the defence AH was repentant and wanted to say that he had given false evidence. In our opinion, no ground was made out for recalling AIL There was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The Court has inherent power to recall a witness if it is satisfied that lie is prepared lo give evidence which is materially different from what he had given at the trial. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate rightly disallowed the prayer for recalling All?"
8. There cannot be any doubt with regard to the principles laid down in the above judgments. But the facts on hand are quite different. Certainly the Court has wide power to recall the witnesses and reexamine in the interests of justice as laid down in Ja/natraj's case (supra). Further the facts in Kotita Markandeyulu's case (supra) are quite distinguishable. In that case the sanction order was already on the file by the time the prosecution's evidence was closed. It was discovered later and an application was filed under Section 3! 1 Cr.PC to summon the Sanctioning Authority to mark the sanction order. The Court in that circumstances rightly summoned the Sanctioning Authority to mark the order. But the case on hand is quite on different facts. First of all there is already an order of the trial Court in Crl. MP No.2452 of 1997 in which it was categorically held that it amounts to filling the lacuna. That order was confirmed by the Sessions Court in Crl. Revision Case No. 172 of 1997 and that order has become final.
9. That apart there are no merits also in the present applications. The evidence was already closed. The petitioner wants PW3 who is a Bank Officer to mark the ledger documents which shows that the petitioner received the intimation of dishonour on 15-3-1996. In the complaint the date on which he received the intimation is not mentioned. The complainant when examined as PW1 categorically stated that:
"..............finally I presented both the cheques on 9-3-1996 returned unpaid for "Funds Insufficient". The same was informed to me by Bank dated 12-3-1996. I got issued a legal notice dated 27-3-1996 duly posted sent through Regd. Post and under Certificate of Posting."
Commenting on this piece of evidence, learned Counsel for the petitioner submitted that the intimation is dated 12-3-1996 but the intimation was received on 15-3-1996. This explanation is not acceptable, particularly when there is a positive admission while deposing in CC No.367 of 1996. He clearly stated that he came to know about the dishonour on 12-3-1996. In such a case the petitioner cannot turn-round and say that he received the intimation on 15-3-1996 and he wants to lead tire evidence by marking the ledger copy of the Bank. This certainly amounts to filling the lacuna and the same cannot be allowed. The Bank Officer was also not made to speak on which date the intimation was given to the petitioner. When he examined. A new fact is now sought to be raised and it cannot be permitted.
10. Learned Counsel for the petitioner submitted in the legal notice dated 27-3-1996, it is clearly mentioned that the cheque was dishonoured and returned to the petitioner on 15-3-1996. This fact supported by the ledger should be a ground for permitting the petitioner to recall PW3 to mark this document in the interests of justice. This submission is untenable. There is no mention of the fact in the complaint itself. In the evidence of PW1 he clearly stated that he received the intimation of dishonour on 12-3-1993. In view of the positive evidence and also after closure of the petitioner's evidence a new plea cannot be permitted to be pressed into service. It is true that the Court has power to recall any witness and the power is very wide, in the interest of Justice But the Court should not permit the parties to fill up the lacuna in their evidence. If it is done that would amounts to flouting the well established principles of criminal jurisprudence.
11. Seeing from any angle, orders under revisions do not require interference. Hence, both the Criminal Revision Petitions are dismissed.