Karnataka High Court
Sri Arun Kumar L vs Sri Bunty K Mehta on 26 November, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl..P.No.7028/2020
1 C/W Crl.P.No.7035/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.7028 OF 2020
C/W
CRIMINAL PETITION NO.7035 OF 2020
BETWEEN:
Sri.Arun Kumar L.,
S/o late C.Lingaiah,
Aged about 54 years,
Executive Director,
M/s. Skill Tech Engineers &
Contractors Pvt. Ltd.,
No.2904, 2nd Floor,
New Kantharaj Urs Road,
Saraswathipuram,
Mysore - 570 004.
... Petitioner
(Common)
(By Sri.Satyanarayana Chalke S, Advocate)
AND:
Sri.Bunty K Mehta,
S/o Kirit Mehta,
Aged about 31 years,
Proprietor, F.S. Enterprises,
Sy.No.58, Andrahalli Main Road,
Yeshwanthpura Hobli,
Bangalore - 560 091.
... Respondent
(Common)
Crl..P.No.7028/2020
2 C/W Crl.P.No.7035/2020
These Criminal Petitions are filed under Section 482 of
Cr.P.C. praying to set aside the order dated 28.05.2020 in
C.C.No.1643/2015 passed by the 27th A.C.M.M., at Bengaluru
produced as Annexure - H.
*****
These Criminal Petitions coming on for Orders, this day,
the Court made the following:
COMMON ORDER
1. Sri. Satyanarayana Chalke S., learned counsel for the petitioner/accused No.3 in both the matters seeks for two weeks time to comply with the office objections but however, requests for the matter to be taken up due to urgency. Further, he submits that the above matter is connected to Crl.P.No.7035/2020. Registry is directed to connect both the matters. As per his request and since both are matters are before the Board today, they are taken up together.
2. The petitioner/accused No.3 in Crl.P.No.7028/2020 is before this Court seeking for setting aside the order dated 28.05.2020 passed in C.C.No.1643/2015 by 27th Additional Chief Crl..P.No.7028/2020 3 C/W Crl.P.No.7035/2020 Metropolitan Magistrate, Bengaluru on an application to return the documents as exhibited in Exs.P1 to P3 field by the complainant under Section 311 of Cr.P.C.
3. The petitioner/accused No.3 in C.C.No.7035/2020 is before this Court seeking for setting aside the order dated 28.05.2020 passed in C.C.No.1643/2015 by 27th 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. Both the petitions arise out of a common order passed in C.C.No.1643/2015 since both the applications were considered together by the trial Court and a common order was passed. The facts leading to the above complaint on the application came to be ordered as under:
"Applications filed by the complainant U/sec. 311 of Cr.P.C seeking permission to Crl..P.No.7028/2020 4 C/W Crl.P.No.7035/2020 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 has a filed case in C.C.No.1643/2015 alleging that there was a 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 was recorded also referred to the said amount.
6. The said complainant had also filed another complaint in C.C.No.3522/2015 against the very same accused for the dishonour of a cheque to an amount of Rs.2,00,00,000/-. The complaint averments has also the averments made in the sworn statement referred to the said amount.
7. 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 Crl..P.No.7028/2020 5 C/W Crl.P.No.7035/2020 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. Similarly in C.C.No.3522/2020, wherein, evidence was lead on 29.06.2015, the cheque for an amount of Rs.2,46,00,000/- bearing No.072834 dated 04.08.2014 drawn on Punjab National Bank, Peenya Industrial Branch, Bengaluru has been produced and marked as Ex.P1. The legal notice was marked as Ex.P2 and acknowledgment thereof as Ex.P3.
8. Though the said marking and evidence occurred in 2015 and though the mistake has happened in the year 2015, it is only of the time when the final arguments were taken up, the two applications were 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.7028/2020 6 C/W Crl.P.No.7035/2020 application for recall of PW.1 to lead further evidence. On enquiry, Sri.Satyanarayana Chalke S., learned counsel for the petitioner submits that similar applications were also made in C.C.No.3522/2020.
9. The said applications were objected too by the accused, the Magistrate after hearing the parties/counsels has passed a detailed order on 28.05.2020 which running into nearly 22 pages. It is the said order which is impugned herein.
10. On enquiry, learned counsel for the petitioner submits that similar order has been passed in C.C.No.3522/2015 on the very same day which is also under challenge before this Court in Crl.P.Nos.7048/2020 and 7033/2020.
11. Learned Magistrate by its reasoned order after appreciating all the contentions which has been taken up by both the counsels appreciating the Crl..P.No.7028/2020 7 C/W Crl.P.No.7035/2020 facts that the complaint referred to the proper cheque stated in the sworn statement, the mistake has 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 application and permitted to return of the documents as also leading of further evidence by recall of PW.1.
12. Sri.Satyanarayana Chalke S., learned counsel for the petitioner contends that such an order could not have been passed under Section 311 of Cr.P.C. since the power under 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 Crl..P.No.7028/2020 8 C/W Crl.P.No.7035/2020 right is created in favour of the accused on account of the default and on defective evidence by the complaint and as such accused would be entitled to benefit for the same. He further submitted that error in the present case is committed by complaint and not by the Court and therefore, such powers cannot be exercised.
13. Heard Sri.Satyanarayana Chalke S., learned counsel for the petitioner.
14. A perusal of the documents which has been produced as also the order, 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/-.
15. As rightly observed by the Magistrate, the complaint refers to the proper cheque, the sworn Crl..P.No.7028/2020 9 C/W Crl.P.No.7035/2020 statement also refers to the proper cheque, however, it appears that by inadvertence and on 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 lead.
16. The contentions of Sri.Satyanarayana Chalke 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 Crl..P.No.7028/2020 10 C/W Crl.P.No.7035/2020 document is exhibited in two matters, such a procedure is not unknown to law and is not prohibited. A document could be marked in multiple proceedings since there are multiple proceedings initiated where such a document is required to be marked.
17. As regard the contention of Sri. Satyanarayana Chalke S., learned counsel that there is a vested right which has been created in favour of the petitioner/accused 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 enure to the benefit of the accused.
18. The complainant as stated above has woken up late and has filed the necessary application and sought Crl..P.No.7028/2020 11 C/W Crl.P.No.7035/2020 to correct if not rectify the mistakes and defect committed. Such a defect as observed being bonafide and inadvertent, the complainant cannot be denied an opportunity on the basis of so called vested rights that Sri.Satyanarayana Chalke 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 lead.
19. The last contention of Sri.Satyanarayana Chalke S., learned counsel is that the application 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 complaint. 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 Crl..P.No.7028/2020 12 C/W Crl.P.No.7035/2020 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."
20. A reading and examination of the above provision would indicate that the same is not restricted to any mistake by the Court, the said provisions 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 its order and the Magistrate though not in uncertain words has come to the conclusion that application is required to be allowed for a proper decision in the case.
Crl..P.No.7028/202013 C/W Crl.P.No.7035/2020
21. Having considered the submission made by Sri.Satyanarayana Chalke S., learned counsel and orders passed by the learned Magistrate, I am of the considered view that there is no requirement of this 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.
22. Hence, both the petitions are dismissed.
Sd/-
JUDGE NR/-