BY AD vs MEENAKSHY PARVATHY

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 VIJAY RETREADS, 22/73 1 B, SEAPORT-AIRPORT ROAD, CRL.MC NO. 10749 OF 2024 2 HMT COLONY P O, KALAMASSERY, KOCHI-683503, REPRESENTED BY ITS SOLE PROPRIETRIX VENKATESH, AGED 46 YEARS, S/O P V NATHAN, 1830, NALINI, TRICHI ROAD, COIMBATHORE, PIN - 683503 BY ADVS JOSE PALLATTUKARAN SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 10749 OF 2024 3 ORDER The petitioner is the accused in C.C.No.1868 of 2016 pending on the files of the Special Judicial First Class Magistrate for the Trial of Cases under Section 138 of the Negotiable Instruments Act, Ernakulam. The case originated from Annexure A-1 complaint filed by the 2nd respondent company alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act. In the trial of the case, the Power of Attorney Holder of the complainant was examined as PW1. During the cross-examination of PW1, certain questions relating to documents maintained by the complainant were asked. After closure of PW1’s evidence, while the case was posted for further evidence, complainant filed a petition under Section 311 of Cr.P.C, seeking to recall PW1 for the purpose of marking certain documents. The petitioner filed objection, contending that the attempt is to fill up the lacuna in the complainant’s case. By the impugned Annexure A-14 order, learned Magistrate allowed the petition CRL.MC NO. 10749 OF 2024 4 and recalled PW1. Hence, this Crl.M.C.

2. Learned counsel for the petitioner contended that certain questions relating to the management of the company as well as the personal knowledge of the witness regarding the subject transaction were asked. The answers elicited from PW1 bolsters the defence set up by the petitioner. Realizing this, the complainant filed the petition under Section 311 of Cr.P.C for recalling PW1, in an attempt to get over the defects and inconsistencies in his evidence. The learned Magistrate mechanically allowed the petition on the premise that under Section 311 of Cr.P.C, court is conferred with the power to recall a witness.

3. Learned counsel for the complainant submitted that PW1 is not being recalled to fill up lacuna in the complainant’s case, but only to mark certain crucial documents. It is contended that the petitioner has not stated as to what prejudice is being caused by re-examining PW1.

4. A perusal of the impugned order shows that it is passed in a mechanical manner. The order does not deal CRL.MC NO. 10749 OF 2024 5 with any of the contentions urged by the parties. All that is stated is that, Section 311 of Cr.P.C confers the court with the power to recall any witness and as certain questions were asked during cross-examination of PW1, an opportunity has to be given to the complainant to produce and mark documents.

5. The power under Section 311 of Cr.P.C is not to be exercised for the asking, as has been done by the impugned order. The court should consider whether the attempt is to fill up the lacuna by the party seeking re- examination of the witness and whether, by reopening the evidence, the opposite side will be put to disadvantage.

6. It is also settled law that, additional evidence should not be received as a disguise for retrial or to change the nature of the case (see Karthik S. Nair v State of Kerala [2023 (5) KHC 468] and Bipin Sabu @ Abi v. State of Kerala [2024 (4) KHC 681]). The above relevant aspects were not considered by the learned Magistrate while passing the impugned order. If the complainant is desirous of marking documents, that can be done through other competent CRL.MC NO. 10749 OF 2024 6 witnesses, as the case is posted for further evidence of the complainant. The Crl.M.C. is accordingly allowed by quashing Annexure A-14 order. Sd/- V.G.ARUN JUDGE SPV CRL.MC NO. 10749 OF 2024 7 APPENDIX OF CRL.MC 10749/2024 PETITIONER’S ANNEXURES ANNEXURE A-1 THE TRUE COPY OF COMPLAINT IN CC NO. 1868/2016 PENDING BEFORE THE HON’BLE SPECIAL COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE (N.I.ACT CASES), ERNAKULAM FILED BY THE 2ND RESPONDENT ANNEXURE A-2 THE TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 03.07.2024 ANNEXURE A-3 THE TRUE COPY OF THE ORIGINAL CHEQUE NO.70423 DATED 27.07.2015 ANNEXURE A-4 THE TRUE COPY OF THE ORIGINAL CHEQUE NO.70424 DATED 26.08.2015 ANNEXURE A-5 ANNEXURE A-6 ANNEXURE A-7 THE TRUE COPY OF THE DISHONOR MEMO FROM THE STATE BANK OF INDIA, CHAKKARAPARAMBU DATED 06.10.2015 THE TRUE COPY OF THE DISHONOR MEMO FROM THE STATE BANK OF INDIA, CHAKKARAPARAMBU DATED 06.10.2015 THE TRUE COPY OF THE OFFICE COPY OF THE LAWYER NOTICE SENT BY THE 2ND RESPONDENT/COMPLAINANT TO THE PETITIONER/ACCUSED ANNEXURE A-8 THE TRUE COPY OF THE POSTAL RECEIPT DATED 26.10.2015 ANNEXURE A-9 THE TRUE COPY OF THE EXHIBIT P7 A/D CARD ANNEXURE A-10 THE TRUE COPY OF THE DEPOSITION OF THE PW1 CRL.MC NO. 10749 OF 2024 8 ANNEXURE A-11 THE TRUE COPY OF THE C M P NO. 7028/2024 IN CC 1868/2016 ANNEXURE A-12 ANNEXURE A-13 THE TRUE COPY OF THE DOCUMENTS PRODUCED ALONG WITH C M P NO. THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/ACCUSED IN CMP NO.7028/2024 ANNEXURE A-14 THE CERTIFIED COPY OF THE ORDER IN C M P NO. 7028/2024 DATED 18.11.2024 RESPONDENT’S ANNEXURES : NIL //TRUE COPY// PA TO JUDGE