Mohan Agrawal vs Dr. B.P. Deewan @ Bhagirath Prasad Deewan

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. against the order dated 20.12.2010 passed by JMFC, Gwalior in Cri. Case No. 10549/2009, whereby application filed by the non-petitioner u/s 311 of the Cr.P.C. has been allowed. Brief facts of the case are that non-petitioner has filed a private complaint u/s 138 of Negotiable Instruments Act alleging that Cheque Nos. 553527 and 553528 dated 23.5.2009 were given to him by the petitioner, which has been dishonored. Non-petitioner in examination-in-chief has mentioned the number of cheques as 553527 and 553528. After completion of the cross-examination an application u/s 311 of Cr.P.C. has been filed with the averment that non-petitioner is old aged person and he is a patient of Diabetes and due to poor eye sight of his Advocate wrong cheque numbers have been mentioned and has wrongly admitted the factum of receiving wrong cheques. Learned trial Court has allowed the prayer of re-examination on the ground of illness of the respondent.

Learned counsel for petitioner submits that the impugned order is illegal, arbitrary and against the provisions of law. In the complaint non-petitioner has mentioned cheque Nos. 553527 and 553528 even in the notice the number of cheques have been mentioned as 553527 and 553528. In chief examination also the number non-petitioner has mentioned the cheque Nos. 533527 and 533528. It is submitted that an intensive cross-examination was done by the petitioner in which non-petitioner has admitted that he has received the cheques, which he has mentioned in the re-examination. It is further submitted that after completion of cross-examination the statement was read over to the witnesses and after understanding the same the witnesses admitted that the contents of his statement are true and there is nothing wrong. In view of the above learned trial Court is not correct in permitting the non-petitioner to change his previous statement. It is further submitted that if there was any typographical error in the number of cheques there is a specific provision u/s 278 of Cr.P.C. Thus, the learned trial Court is not justified in allowing the application. It is prayed that the order dated 20.12.2010, whereby application has been allowed be set aside and the examination of the non-petitioner, which was done on 20.10.2010 in lieu of impugned order may kindly be ordered to be deleted.

Learned counsel for the non-petitioner supported the impugned order.

In view of the submission of the learned counsel for the parties, I have perused the record.

From Annexure P/2, it transpires that it is alleged that petitioner has given two cheques bearing No. 553527 and 553528, which has been dishonored being insufficient of funds. Notice was given to the petitioner but he failed to deposit the same. Notice Annexure P/3 shows that the cheque number have been mentioned as No. 553527 and 553528.

From perusal of affidavit filed by the non-petitioner in chief examination and Annexure P/2 shows that the cheque No. 533527 and 533528 has not been given the suggestion, has been denied by the respondent/complainant. He admitted that he has mentioned cheque No. 533527 and 533528 in his affidavit. In para 17, he further denies that he has not given any notice regarding the cheque No. 533527 and 533528.

The question called for consideration is whether non-petitioner/complainant can be summoned for re-examination under the provision of Section 311 of Cr.P.C. for cross of evidence recorded in trial. Admittedly non-petitioner Dr. V.P. Diwan did not object to that he has stated wrong number of cheques because he is an old person and not able to see properly on the date 19.07.2010 and when cross examination was differed on 19.07.2010 again on 20.10.2010 when cross examination was concluded. The prayer has been made by the non-petitioner sometime in the month of December 2010 i.e. after more than one month.

In the case of Mod. Kadeer Vs. Abdul Wahid, reported in 1999 (II) MPWN 63, this Court has observed as under:-

Under the Scheme of Code of Criminal Procedure, correction of the evidence, recorded at the trial, is permissible u/s 278 only. It would be useful to reproduce section 278, which reads as follows:-

Procedure in regard to such evidence when completed-

(1) As the evidence of such witness taken u/s 275 or section 276 is completed it shall be read over to him in the presence of the accused, if in attendance, or his pleader, if he appears by pleader, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.

The Apex Court had an occasion of examining the scope of correction of the evidence u/s 278 Cr.P.C. in the case of Mir Mohd. Omar and Others Vs. State of West Bengal (supra), wherein it was observed in para 14:

the object of S. 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-sec. (1) but if the correction is such that the Judge does not consider necessary, sub-sec. (2) requires that memorandum of the objection be made and the Judge add his remarks, if any thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of S. 278 are substantially complied with.

The petitioner has not made any prayer for correction of the statement when it was read over to him.

In the matter of Mishrilal and Others Vs. State of M.P. and Others, Hon''ble Supreme Court has observed that once the witness was examined in chief and cross examined fully, such witnesses should not have been recalled and re-examined to deny the evidence he had already given before the Court. In the instant case not only notices have sent to the petitioner but also in the complaint number of cheques have been mentioned as 553527 and 553528 even in the affidavit filed by the non-petitioner the cheque number has been mentioned as 533527 & 533528. Despite the suggestion given to the non-petitioner in his cross examine he remain firm regarding the cheque Nos. 533527 and 533528. No objection has been raised after his statement read over to the non-petitioner. He has not raised any objection. After the lapse of more than month non-petitioner want to resile his previous statement. In my opinion, recourse of Section 311 of the Cr.P.C. for evidence recorded at trail cannot be taken.

Under the garb of an application u/s 33 of Cr.P.C. witness cannot be allowed to resile at a later stage of the trial from his deposition recorded earlier.

In view of the aforesaid analysis the order passed by the learned Magistrate deserves to be set aside. Consequently, petition is allowed. The order passed by the learned Magistrate dated 20.12.2010 is hereby set aside and the re-examination of the non-petitioner in the light of the impugned order is directed to be deleted. With the aforesaid, petition stands disposed of.