Gongotri Heights Developers Pvt. Ltd. & Anr vs Sasanka Sekhar Mohapatra Vs

Dr. A. K. Mishra, J

In this proceeding U/s. 482 Cr.P.C., prayer has been made to set aside the impugned order dated 05.04.2016 passed in 1CC Case No.1098/2014 by

the learned JMFC, Bhubaneswar in allowing the prayer of the complainant to exhibit demand letter, postal receipt and its reply on recall as he could

not exhibit the same in course of his examination-in-chief.

The present petitioners are accused persons in 1CC Case No.1098/2014. The opposite party was the complainant. The trial was proceeded for the

offence U/s138 of the Negotiable Instruments Act, 1881. The complainant was examined as P.W.1, cross-examined and discharged on 18.03.2015.

Thereafter on some day, prayer was made to exhibit above documents on his recall. The accused persons filed objection.

Learned JMFC by detailed order allowed the same stating that the evidence of P.W.1 was essential for the just decision of the case and such

examination would not cause any prejudice to the defence.

Learned counsel for the petitioners submits that as no foundation was laid in the complaint petition and the documents were not filed till the

impugned order, the defence was totally prejudiced by introduction of the new facts and for that the impugned order is not sustainable in the eye of

law. In support of his contention, he relies upon the decisions of the Hon‟ble Supreme Court in the case of Sabitha Ramamurthy & Anr. vrs. R.B.S.

Channabasavaradhya, AIR 2006 SC 3086 and Mannalal Chamaria & Anr. vrs. State of West Bengal and Anr., (2014) 58 OCR (SC) 160.

Learned counsel for the opposite party submits that notice issued and reply given by the accused persons are mentioned in the complaint petition, as

such the order of the learned JMFC does not suffer from any illegality in view of the object of Section 311 of the Cr.P.C.

Both the cited decisions on behalf of the petitioners are on the point that whether the accused persons are to be proceeded with in a case U/s.138 of

the N.I. Act and for that it was reiterated therein that the sufficient material was necessary to decide the issue of process. On the facts of this case,

these two cited decisions are quite distinguishable.

Section 311 of the Cr.P.C. empowers the Court to recall and re-examine any person already examined inter alia at any stage of enquiry or trial if

the evidence appears to be essential to the just decision of the case.

In the decision reported in AIR 2014 SC 2950 in the case of Mannan Sk & others vrs. State of West Bengal & anothe,r it has been held at para-10 in

the following way:-

“10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of

a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any

inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as

witness or recall and re-examine already examined witness. The second part of the Section uses the word „shall‟. It says that the court shall

summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words

essential to the just decision of the case‟ are the key words. The court must form an opinion that for the just decision of the case recall or re-

examination of the witness is necessary. Since the power is wide it‟s exercise has to be done with circumspection. It is trite that wider the power

greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided

by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the

lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In

all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all

the circumstances and decide whether the prayer for recall is genuine.â€​

In the case of Manju Devi vrs. The State of Rajasthan: (2019) 6 SCC 20,3 Hon‟ble Apex Court has referred the decisions in Mohanlal Shamji Soni

vrs. Union of India:1991 Supp (1) SCC 271, Zahira Habibulla H. Sheikh vrs. State of Gujarat: (2004) 4 SCC 15,8 Mina Lalita Baruwa vrs. State of

Orissa and others: (2013) 16 SCC 173 and Rajaram Prasad Yadav vrs. State of Bihar and others:2013 (14) SCC 461 and Natasha Singh vrs. CBI

(State): 2013 (5) SCC 741, wherein it is held as follows:-

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 Cr.P.C 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 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 stageâ€, 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.â€​

Now descending to the issue at hand, I am of the considered opinion that in this nature of case U/s. 138 of the N.I. Act, based upon dishonor of

cheque, ingredients inter alia with regard to notice and reply if available, are to be satisfied. In that process, the recall of the complainant to prove

certain documents which is not done cannot be construed to be an act of prejudice. The opinion of the trial court that it was essential for the just

decision of the case cannot be said unjust or illegal. The same does not warrant any interference U/s. 482 of Cr.P.C.

However, keeping in view the submissions of the learned counsel for the petitioners, learned trial court is directed to ensure the service of copy of the

documents which are to be exhibited as per the order dated 5.4.2016, to be served upon the accused persons and reasonable opportunity is to be given

for cross-examination.

With this observation, the CRLMC is disposed of.