L.Periasamy v. M/s. Sparsh Communications Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23.03.2009CoramThe Honourable Mr. Justice S.TAMILVANANCrl. R.C.Nos.529 to 531 of 2004and Crl.M.P.Nos.3350 to 3352 of 2004L.Periasamy .. Petitioner in all the petitionsvs.M/s. Sparsh Communications Ltd.,rep. by Y.S.AnanthKiosh Country Manager,4/3/347/A, II Floor, Bank Street,Koti, Hyderabad – 95. .. Respondent in all the petitions PRAYER in Crl.R.C.No.529 of 2004 : Revision is filed under Section397 r/w 401 of Criminal Procedure Code against the Order made inCrl.M.P.No.314 of 2003 in STR.No.1075 of 2001, dated 03.02.2004 onthe file of the learned Judicial Magistrate No.I, Pondicherry asillegal and seeking to set aside the same. PRAYER in Crl.R.C.No.530 of 2004 : Revision is filed under Section397 r/w 401 of Criminal Procedure Code against the Order made inCrl.M.P.No.312 of 2003 in STR.No.1073 of 2001, dated 03.02.2004 onthe file of the learned Judicial Magistrate No.I, Pondicherry asillegal and seeking to set aside the same. PRAYER in Crl.R.C.No.531 of 2004 : Revision is filed under Section397 r/w 401 of Criminal Procedure Code against the Order made inCrl.M.P.No.306 of 2003 in C.C.No.555 of 2001, dated 03.02.2004 on thefile of the learned Judicial Magistrate No.I, Pondicherry as illegaland seeking to set aside the same. For petitioner in all the petitions :Mr.K.P.Ananthakrishnan For respondent in all the petitions :Mr.D.ShivakumaranCOMMON ORDERThe petitioner herein has preferred these Criminal Revisionsagainst the orders, dated 03.02.2004 made in Crl.M.P.Nos.314, 312 and https://hcservices.ecourts.gov.in/hcservices/ 306 of 2003 on the file of the learned Judicial Magistrate No.I,Pondicherry. Crl.M.P.No.306 of 2003 was filed by the petitioner /complainant under Section 311 Cr.P.C to recall P.W.1, for the purposeof examining him and Crl.M.P.No.307 of 2003 was filed by thepetitioner / complainant under Section 244 (1) (2) Cr.P.C to receiveadditional documents.2. The revision petitioner herein is the complainant, who hadfiled the petitions before the trial court. The fact of the case isthat the petitioner and the respondent had entered into a contractand that was subsequently cancelled by way of a settlement deed,dated 08.09.2000. As per the settlement, the respondent / accused hadagreed to pay Rs.3,00,000/- to the petitioner / complainant, forwhich three post dated cheques, each for Rs.50,000/- were issued bythe respondent herein in favour of the petitioner / complainant,bearing Cheque Nos.561700, 561701 and 561702 drawn on United WesternBank Ltd., Hyderabad Branch. But the aforesaid cheques weredishonoured due to insufficient funds in the Bank Account. Hence, thepetitioner herein preferred the complaint, under Sections 138 and 142of Negotiable Instruments Act. In the aforesaid case, thepetitioner / complainant himself was examined as P.W.1 and his Bankerwas examined as P.W.2. According to the petitioner / complainant, on10.02.2003 during cross-examination, the respondent / accusedsurprisingly denied his role and knowledge about the issuance ofcheque and also his past day to day affairs in the company, hence itwas necessitated to file the petitions for recalling P.W.1 and forreceiving the documents. The petitioner / complainant hasspecifically stated the following documents to be received (1) ReplyNotice dated 17.03.2001 (2) Letter by the respondent to thepetitioner, dated 23.10.2000 and (3) Letter by the respondent to thepetitioner, dated 16.01.2001.3. It is not in dispute that the cases were posted forquestioning the accused under Section 313 Cr.P.C and at that stage,the revision petitioner filed the petitions. According to thepetitioner, he wanted to furnish some vital documents, which would goto show that the respondent / accused was responsible for thedishonour of cheques.4. It is seen that the petitioner had filed petitions underSections 311 and 244 (1) (2) Cr.P.C, but the same were dismissed bythe Court below. Aggrieved by the orders of the Court below, thepetitioner has preferred these revision petitions.5. Mr.K.P.Anantha Krishnan, learned counsel appearing for therevision petitioner submitted that the court below could have allowedthe petitions in the interest of justice and in support of hiscontention, he relied on the following decisions : https://hcservices.ecourts.gov.in/hcservices/

1. P.Chhaganlal Daga vs. M.Sanjay Shaw, 2004 SCC (Cri) 1832. S.R.Sinha vs. Mrinal Sengupta, 2001 SCC (Cri) 15816. Per contra, learned counsel appearing for the respondentsubmitted that there is no error in the impugned order passed by thecourt below, as prosecution evidence had been closed and the matterwas posted for questioning the accused under Section 311 of Cr.P.C.7. In P.Chhaganlal Daga vs. M.Sanjay Shaw, reported in 2004 SCC(Cri) 183, the Hon'ble Apex Court has held that though argument wasconcluded and the case was posted for judgment, since the complainanthad moved the trial court for reception of additional materials, inexercise of powers under Section 311 of the Code of CriminalProcedure, as the materials were necessary for a just and properdecision in that case, it was proper to allow the petition to meetthe ends of justice. The Hon'ble Supreme Court held that there is noerror on the part of the trial court in allowing the petition filedunder Section 311 Cr.P.C. In the judgment referred to, the Hon'bleSupreme Court held as follows :"6... The only factor which should govern thecourt in exercise of powers under Section 311should be whether such material is essential forthe just decision of the case. Even a reading ofSection 311 of the Code would show that Parliamenthas studded the said provision lavishly with theword "any" at different places. This would alsoindicate the widest range of power conferred onthe court in that matter..."8. In Rajendra Prasad vs. Narcotic, reported in 1999 (6) SCC 110,the Hon'ble Apex Court has held as follows :"It is a common experience in criminal courtsthat defence counsel would raise objectionswhenever courts exercise powers under Section 311of the Code or under Section 165 of the EvidenceAct, 1872 by saying that the court could not'fill the lacuna in the prosecution case". Alacuna in the prosecution is not to be equatedwith the fallout of an oversight committed by aPublic Prosecutor during trial, either inproducing relevant materials or in elicitingrelevant answers from witnesses. The adage 'toerr is human' is the recognition of thepossibility of making mistakes to which humansare prone. A corollary of any such laches ormistakes during the conducting of a case cannotbe understood as a lacuna which a court cannotfill up." https://hcservices.ecourts.gov.in/hcservices/

9. In S.R.Sinha vs. Mrinal Sengupta, reported in 2001 SCC (Cri)1581, the Hon'ble Apex Court has held that there is no bar againstthe examination of a witness, even at a stage subsequent to therecording of a statement of the accused and it is held as follows :"2. It is difficult to appreciate the approach ofthe High Court in the revision application forthe reason that there is no bar against theexamination of a witness even at a stagesubsequent to the recording of the statement ofthe accused in exercise of power under Section311 of the Criminal Procedure Code..."10. The aforesaid decisions cited by the learned counselappearing for the petitioner would clearly show that under Section311 of Cr.P.C, the Court is empowered to permit a party to re-openthe evidence and mark the additional documents, to meet the ends ofjustice. Further, it is seen that there is no malafide intention,alleged on the part of the petitioner / complainant in filing thepetitions under Sections 311 and 244 (1) & (2) Cr.P.C, to re-open thecase, in order to mark certain vital documents and also to receivethe said documents for the purpose of marking. 11. It is a well settled proposition of law that whileconsidering petitions filed under Sections 311 and 244 (1) & (2) ofCr.P.C, the orders so passed should meet the ends of justice, whichshall not be dismissed summarily on technical grounds. Both thepetitions are interconnected. 12. Mr.K.P.Ananthakrishnan, learned counsel appearing for thepetitioner / complainant drew the attention of this Court to the copyof the petitions filed before the court below, in the typed set,wherein the petitioner has specifically stated that on 10.02.2003,during the cross-examination, the respondent / accused denied certainfacts, which necessitated to file the petitions to recall P.W.1 forthe purpose of marking the documents, in order to establish the fact.13. As contended by the learned counsel appearing for thepetitioner / complainant, I am of the view that marking thedocuments, specified in the petition by recalling P.W.1, would notcause prejudice to the respondent. On the facts and circumstances,there is no possibility to attribute any malafide intention on thepetitioner herein for filing the petition. Therefore, the balance ofconvenience is also in favour of the petitioner / complainant.14. In the light of various decisions of the Hon'ble Apex Court,I am of the view that the court below has failed to consider thepetitions properly, to meet the ends of justice. Hence, theseCriminal Revision Petitions are allowed and the order of the trialcourt is set aside. However, the trial court is directed to provide https://hcservices.ecourts.gov.in/hcservices/ reasonable opportunity to the petitioner to mark the documents. Onthe representation made by the learned counsel appearing for thepetitioner, since the matter relates to the year 2001, the Courtbelow is directed to dispose the case, according to law on merits,within a period of three months from the date of receipt of a copy ofthis order. Consequently, connected miscellaneous petitions areclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsvnTo1. The Judicial Magistrate No.I Pondicherry.2. -Do-Thro The Chief Judicial Magistrate Puducherry.3 ccs To Mr.K.P.Ananthakrishna, Advocate, SR.9167, 9168, 9179 Crl.R.C.Nos.529 to 531 of 2004 KU(CO)SRA(22/5/2009)