Mr. P.R. Chandran vs Rajendra Paper Sores

A.C. Arumugaperumal Adityan, J.—The order passed by the learned trial judge in Crl.M.P. No. 2274 of 2005 in C.C. No. 255 of 2003,

on the file of the Judicial Magistrate No. V, Coimbatore, is under challenge before this Court in his revision.

The complainant/respondent herein had filed the said application u/s 311 of Cr.P.C., seeking the indulgence of the Court to permit him to recall

P.W. 1 and then to mark two documents viz. Statement of accounts and confirmation letter of the accused dated 1.4.2002. The respondent had

filed a counter in the said application. After hearing both sides, the learned trial judge has allowed the application, which necessitated the accused

to approach this Court by way of this revision.

Heard Mr. S. Shanmugavelayutham, learned senior counsel appearing for the revision petitioner and Mr. A.M. Rahamath Ali learned Counsel

appearing for the respondent herein and considered their rival submissions.

Now the point for determination in this revision is whether the order passed by the learned trial judge allowing the application to recall P.W. 1

and to mark both the documents mentioned above is sustainable for the reasons stated in the memorandum of revision?

The Point : - 5 (a) The learned senior counsel would contend that exercising the power of a Court u/s 311 of Cr.P.C., is entirely different from

exercising its power u/s 91 of Cr.P.C. u/s 311 of Cr.P.C., only if the Court is satisfied that the additional documents and evidence is necessary for

arriving at a just decision the same can be allowed, whereas u/s 91 of Cr.P.C., an order for send for any document or to let in any additional

evidence, is left with the discretion of the parties concerned.

5(b) The learned senior counsel would contend that before the trial Court the evidence of the complainant is over and after the incriminating

circumstances were put to the accused, D.W. 1 & D.W. 2 were examined on the side of the accused, and now the trial has come to an end and

only the advocates to argue their respective cases, at this juncture the complainant only to fill up the lacuna has filed the said application u/s 311 of

Cr.P.C., it cannot be entertained at all in lieu of the several ratio decidendi available. The learned senior counsel relied on 1991 L.W. (Crl) 42

Govinda Reddy v. State, wherein in a similar circumstance a learned Judge of this Court has held that an application u/s 311 of Cr.P.C., can not be

encouraged. The relevant observation of the learned Judge in the above dictum runs as follows:

In this case, at no point of time, the prosecution had elicited from the Medical Officer that the injury found on P.W. 2, the victim, could have been

caused at the time and in the manner alleged by the prosecution. The prosecution, having failed to do so, at several stages, cannot be now

permitted to fill in a lacuna after the defect was pointed out, during the course of arguments.

A similar view has been taken by the learned another Judge of this Court in 1991 LW 475 N. Lakshmanan v. The Tamil Nadu Electricity Board,

Tiruttani, rep. by its Executive Engineer Mr. M. Kuppuswamy and the relevant observation runs as follows:

Section 311 of Cr.P.C., permits the court to any stage of the enquiry or trial or other proceedings to summon any person as a witness or examine

any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined an 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. It has been often

emphasized that the very width of the power under this Section, required corresponding caution, before exercise of the power. The only criterion

for exercise of this power is that it should appear to the Court that the evidence sought to be placed was essential to the just decision of the case.

A similar view was taken by a learned Judge of this Court in 2001 (2) LW (Crl.) 534 A. Radhakrishanan v. Income Tax Officer, City Circle 1 (4)

Madras-34, wherein while referring the ratio decidendi in1991 L.W. (Crl.) 42 Govinda Reddy v. State, and 1991 LW 475 N. Lakshmanan v. The

Tamil Nadu Electricity Board, Tiruttani, rep. by its Executive Engineer Mr. M. Kuppuswamy, the learned Judge has held that:

When the above principles of law are applied to the facts of the present cases, I feel that the learned Magistrate has committed an error in allowing

the petition filed by the respondent u/s 311 of Cr.P.C., to enable the prosecution to fill in the lacunae, though the respondent had an opportunity at

the time of trial to examine the witnesses.

5(c)Under the above application the complainant sought to exhibit two additional documents one the statement of accounts and another a

confirmation letter sent by the accused dated 1.4.2002. But at the time of trial, the above said documents must be with the complainant and there is

no reason stated in the application as to why he has not filed those documents while he was examined as P.W. 1 before the Court. As rightly

pointed out by the learned Counsel for the respondent Mr. A.M. Rahamath Ali u/s 139 of the Negotiable Instruments Act the accused has got a

right to rebut the evidence let in by the complainant. But after examination of the accused and his witnesses and after the submissions of his

evidence before the trial court through his witnesses, in my view, it is not open to the complainant to reopen the case only for the purpose of filling

up the lacuna. So I am of the view that the order passed by the learned trial Court in Crl.M.P. No. 2274 of 2005 in C.C. No. 255 of 2003 on the

file of the Judicial Magistrate No. V, Coimbatore, is liable to be interfered with in this revision. Point is answered accordingly.

In fine, the revision is allowed and the order passed by the learned trial Judge in Crl.M.P. No. 2274 of 2005 in C.C. 255 of 2003 on the file of

the Judicial Magistrate No. V, Coimbatore, is hereby set aside. The learned trial judge is directed to expedite the trial in C.C.255 of 2003 pending

on his file and dispose of the same within one month from the date of receipt of copy of this order.