Bir Singh vs Sunbeam Engineering Corporation

V.K. Shali, J.—This is a petition filed by the Petitioner against the order dated 20.04.2011 passed by the learned ACMM by virtue of which the application of the Petitioner/accused u/s 311 Cr. P.C. for recalling /re-examination of the complainant as a witness for further cross-examination and for filing additional affidavit of the accused/Bir Singh along with the documents in his defence has been dismissed.

Briefly stated the facts of the case are that the Respondent had filed a complaint u/s 138 of the Negotiable Instruments Act against the present Petitioner/accused. The complainant had adduced his evidence and thereafter the statement of the accused was recorded and an opportunity was given to the accused to adduce his defence. The accused did not adduce any evidence despite sufficient opportunities having been given on account of which the learned Trial Court closed the defence of the accused /Petitioner on 26.06.2010 and listed the matter for final arguments on 11.08.2011. The accused/Petitioner filed an application for recalling the complainant for further cross examination and also for filing his own additional affidavit along with the documents in order to establish that no offence has been committed by him. The ground for recalling the complainant was that the counsel who was representing the accused/Petitioner earlier had not asked certain relevant questions to the complainant which are very vital for his defence. So far as the filing of the additional affidavit and documents are concerned, no plausible explanation has been given. The learned Magistrate after hearing the arguments rejected the application on the ground that the non-examination of the complainant by the earlier counsel cannot be set up as a ground for recalling of the witness for further cross examination. It was observed, in case, it is permitted to be done then practically in every case the accused at any stage can say that his earlier counsel has not asked the appropriate questions to the witness and therefore, he may be permitted to recall the witness. Accordingly, the application was dismissed.

Further, it was also observed by the learned Magistrate that the very fact that the application was filed when the case was listed for final arguments shows that it was actuated only with a view to delay the disposal of the main case itself.

I have heard the learned Counsel for the Petitioner and have also gone through the order as well as the other documents filed along with the petition. The learned Counsel for the Petitioner has relied upon the observations passed by the Apex Court in the case titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, wherein it has been observed as under:

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 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.

It is on the basis of these observations, the learned Counsel for the Petitioner has contended that the recalling/re-examination of the complainant as a witness for the purpose of further cross-examination will not fill up the lacuna in the defence instead, it is required in the interest of justice.

I have gone through the judgment cited by the learned Counsel for the Petitioner in case titled Krishna Janardhan''s case. The facts of the said judgment are totally distinguishable from the facts of the present case. In the reported case, the complainant had recalled certain witnesses for the purpose of cross examination. One of the arguments which was put before the Apex Court was that the Court should not have allowed the application of the complainant to recall the witnesses for the purpose of further examination, as it tantamounts to filling up the lacuna. It was in this context that the Apex Court observed that a distinction has to be drawn between filling up the lacuna and an error which has taken place during the course of trial. The witness may not be allowed to be summoned for the purpose of further cross-examination in order to fill up the lacuna while as in a case of genuine error, a party can be permitted to recall the witness for further cross-examination. In the present case, the Petitioner /accused is trying to fill up the lacuna and this lacuna is stated to be that the earlier counsel who was conducting the matter on behalf of the Petitioner had not cross examined the witnesses properly and did not put questions which were essential for the defence of the accused. If this analogy is accepted then every time a counsel is changed, the new counsel may like to cross examine the witness according to his own whims and fancies and in that eventuality not only the witness will be subjected to harassment but it will also result in an unending trial of the matter. Apart from this, in the instant case, the learned Magistrate has very correctly noted that the entire purpose of filing the application was to indulge in dilatory tactics because the stage at which this application was filed was highly belated as the defence of the accused had also been closed long back and the case was fixed for final arguments.

For these reasons, I feel that the judgment which is relied upon by the Petitioner /accused is of no help to him. I do not find any irregularity, illegality or impropriety in the order passed by the learned Magistrate nor do I find that any order to the contrary is required to be passed u/s 482 Code of Criminal Procedure

For the reasons mentioned above, I feel that there is no merit in the petition, and accordingly, the same is dismissed.