Dismissed

Smt Divya a v. Sri Adiveppa Magadum

Karnataka HC13 Aug 2021CRL.P/2491/2021

Case brief

AI extract

What is this about?

Criminal Petitioner challenged the dismissal of a Section 391 application by the First Appellate Court. The court held that without setting aside the trial judgment, the First Appellate Court cannot allow further cross-examination or defence evidence under Section 391 CrPC; such issues can be addressed only upon remand.

What did the court decide?

Criminal Petition dismissed. First Appellate Court directed to hear final arguments and allowed discretion to remand if necessary for further examination or evidence.

Smt Divya a Vs Sri Adiveppa Magadum — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^th DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE K. NATARAJAN

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CRIMINAL PETITION No.2491 of 2021

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BETWEEN

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SMT. DIVYA A., W/O. SRI VINAY KUMAR G., AGED ABOUT 35 YEARS, RESIDING AT No.2, BASAVANNA LANE, K.R. SHETTYPET, AVENUE ROAD CROSS, BENGALURU - 560 002.

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...PETITIONER

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(BY SRI RONY SEBASTIAN, SENIOR ADVOCATE a/w SRI MELANIE SEBASTIAN, ADVOCATE)

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AND

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SRI ADIVEPPA MAGADUM, S/O. UNKNOWN, AGED ABOUT 59 YEARS, RESIDING AT No.3, 16^TH MAIN ROAD, J.C. NAGAR, MAHALAKSHMIPURAM, OPPOSITE TO SMITHA ENGLISH SCHOOL, BENGALURU - 560 066.

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…RESPONDENT

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(BY SRI SHRIDHARA K., ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 05.10.2020 PASSED IN CRL.A.No.2410/2018 ON THE FILE OF LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-70) AND DIRECT THE FIRST APPELLATE COURT TO REMIT THE CASE BACK TO THE TRIAL COURT WITH A DIRECTION TO THE TRIAL COURT TO RECALL PW-1 AND SUBJECT HIM TO FURTHER CROSS-EXAMINATION BY THE PETITIONER AND ALSO TO

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RECORD FURTHER STATEMENT UNDER SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE, BY CONFRONTING THE PETITIONER WITH THE MATERIAL EVIDENCE AND MATERIAL DOCUMENTS, NAMELY EXs.P.1 TO EX.P.13, EX.P.30, EX.P.40 AND THEREAFTER TO PERMIT THE ACCUSED/PETITIONER TO ADDUCE DEFENSE EVIDENCE.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.08.2021 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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This petition is filed by the petitioner under Section 482 of Cr.P.C. for setting aside the order dated 05.10.2020 passed in Criminal Appeal No.2410/2018 on the file of the LXIX Additional City Civil and Sessions Judge (CCH-70) and to direct the First Appellate Court to remit the case back to the Trial Court with a direction to the Trial Court to recall PW.1 and to further cross-examine and to record further statement under Section 313 of Cr.P.C.

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Heard the arguments of Sri Tomy Sebastian, learned Senior counsel along with Sri Melanie Sebastian, learned counsel for the petitioner and Sri Shridhara K., learned counsel for the respondent.

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The case of the prosecution is that the respondent herein filed a private complaint under Section 200 of Cr.P.C. against this petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short ‘N.I. Act’). After taking cognizance, the case was registered in CC No.15555/2017 and the petitioner was summoned by the Trial Court. The petitioner-accused pleaded not guilty. Hence, the evidence was commenced. After examining PW.1 and marking some documents as per Exs.P.1 to P.29, the matter was posted for cross-examination. After some crossexamination, the case was posted for recording the statement under Section 313 of Cr.P.C. After recording the statement under Section 313 Cr.P.C., the complainant was recalled and further cross-examined, marked Exs.P.30 to P.35. Subsequently, the matter was adjourned for cross-examination. The case was further posted for defence evidence and at that time, again the complainant filed an application under Section 311 of Cr.P.C. and recalled PW.1. Further, Exs.P.36 to P.40 were marked.

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Thereafter, the accused did not choose to cross-examine the witnesses of the complainant i.e. PW.1. Hence, the matter was posted for arguments. Later, the judgment was pronounced and the accused was convicted and sentenced for the offence punishable under Section 138 of N.I. Act.

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Assailing the same, the accused preferred an appeal before the First Appellate Court under Section 374 of Cr.P.C. in Criminal Appeal No.2410/2018. The accused also filed an application under Section 391 of Cr.P.C. for allowing the I.A. and directing the Trial Court to recall PW.1 for the purpose of further cross-examination and to record further statement under Section 313 of Cr.P.C. in respect of further documents marked by the complainant before the Trial Court and permit the accused to adduce defence evidence. The application came to be dismissed by the First Appellate Court vide impugned order dated 05.10.2020, which is under challenge before this Court.

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Learned Senior counsel for the petitioner strenuously contended that the Trial Court has committed error in not properly recording the statement under Section 313 of Cr.P.C. by putting in all incriminating evidence adduced against him which are available. Further, the evidence of PW.1 i.e. Exs.P.29 to P.40 were not at all questioned. Recording statement under Section 313 of Cr.P.C. is not just a formality. Recording the statement in accordance with law by putting questions to the accused on the incriminating evidence adduced against him by the complainant witnesses is the duty of the Court, which is not done properly by the Trial Court and also the Trial Court has not permitted further cross-examination of PW.1 and also the defence evidence was not let in. Therefore, he has filed an application under Section 391 of Cr.P.C. for adducing further or additional evidence, which was rejected by the First Appellate Court, thereby committed error. The order of the First Appellate Court is illegal, perverse and liable to be set aside. Hence, prayed for allowing the petition.

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6. Per contra, learned counsel for the

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respondent/complainant seriously objected and contended that the relief sought by the petitioner can be considered only while hearing the appeal finally and if the First Appellate Court comes to the conclusion that the matter requires to be remanded for the purpose of further crossexamination of PW.1 and also to adduce evidence of the accused as defence evidence, but the relief sought by the petitioner is under Section 391 of Cr.P.C. for leading additional evidence before the First Appellate Court. Therefore, the question of granting the relief of further cross-examination regarding Section 313 of Cr.P.C., defence evidence cannot be allowed by the First Appellate Court. Therefore, the First Appellate Court rightly rejected the application and learned counsel contended that there is no merit in the arguments. Hence, prayed for dismissal of the petition.

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Learned counsel on both side relied upon various judgments of the Hon’ble Supreme Court.

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8. Upon considering the arguments addressed by both

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the counsel and the impugned order passed by the First Appellate Court, it is an admitted fact as could be seen from the available records and the order sheet of the Trial Court that the complainant is examined as PW.1 and got marked some documents as per Exs.P.1 to P.21. Subsequently, the matter was posted for crossexamination and some cross-examination was done by the accused. Thereafter, the matter was posted for further cross-examination. PW.1 was recalled and further

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examined by marking Exs.P.30 to 35 and again, when the matter was posted for defence evidence, the complainant again filed one more application under Section 311 of Cr.P.C., which came to be allowed and PW.1 was further examined and Exs.P.36 to P.40 were marked. Later, the matter was posted for cross-examination and in view of the absence of the learned counsel for the accused, the further cross-examination was taken as nil and the defence

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evidence was taken as nil due to the absence of the

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learned counsel for the accused. Later the judgment was pronounced.

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Learned counsel relied upon various judgments in respect of Sections 391 and 313 of Cr.P.C. Of-course, the Hon’ble Supreme Court in various cases held that the statement under Section 313 of Cr.P.C., is not just a formality and the trial Court is required to put a question to the accused in respect of incriminating evidence and the circumstances adduced against the accused. On perusal of the record, though PW.1 examined and marked 29 documents in the first instance, thereafter, statement under Section 313 of Cr.P.C. was recorded. But after further cross-examination of PW.1, marking Exs.P.30 to P.40 has not been considered by the Trial Court while closing the evidence of PW.1, but not recorded the further statement under Section 313 of Cr.P.C. of the accused. However, learned counsel for the respondent brought to the notice of the Court the proceedings under Section 138 of N.I. Act as summary proceeding and the proviso to

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Section 313(1)(b) of Cr.P.C. empowers the Court that in a summons case, the Court can dispense with the personal appearance of the accused. It may also dispense with the recalling of the statement of the accused under Section 313 of Cr.P.C., under clause(b) of Cr.P.C., which goes to show that the Magistrate in a summary proceeding dispense with the examination of accused under Section 313 Cr.P.C. Admittedly, this case being a summary proceeding, the Trial Court even dispensed with examination of accused under Section 313 of Cr.P.C. on the other hand, the Trial Court recorded statement under Section 313 of Cr.P.C. in the first instance in respect of Exs.P.1 to P.24. However, there is no further examination of the accused under Section 313 based upon Ex.P.30 to P.40. The main contention of learned counsel for the accused is that he has not further cross-examined PW.1 and subsequently, the matter was posted for defence evidence and he has not let in evidence. It is the mistake on the part of the accused for not choosing to further cross-examine the complainant and not leading any

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defence evidence. Therefore, the accused cannot be allowed to conduct further cross-examination and leading defence evidence before the First Appellate Court by invoking Section 391 of Cr.P.C. It appears, learned counsel for the accused by way of filing an application under Section 391 of Cr.P.C. in the name of additional evidence in the First Appellate Court is trying to patch up the case for further cross-examining PW.1, under the guise of not recording statement under Section 313 of Cr.P.C. and trying to lead defence evidence, which cannot be permissible before the First Appellate Court.

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I have gone through the various judgments relied upon by the learned counsel for the accused. Section 391 of Cr.P.C. clearly empowers the First Appellate Court to allow the evidence by any of the parties by recording additional evidence by itself or by keeping pending the appeal, direct the Magistrate or any other Court for recording additional evidence by sending back and then proceed to pass judgment by following the guidelines

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issued by the Hon’ble Supreme Court in various cases under Section 391 of Cr.P.C.,

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The Hon’ble Supreme Court in a recent judgment in the case of Brig. Sukhjeet Singh (Retd.) MVC vs. The State of Uttar Pradesh and others in Criminal Appeal No.148/2019 (arising out of SLP (Crl.) No.1120/2017) at paragraphs 13 to 16, has held as under:

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“13. The key words in Section 391(1) are “if it thinks additional evidence to be necessary”. The word “necessary” used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of Appellate Court are contained in Section 386. In an appeal from a conviction, an Appellate Court can exercise power under Section 386(b), which is to the following effect:-

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(b) in an appeal from a conviction-

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(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent

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jurisdiction subordinate to such Appellate Court or committed for trial, or

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(ii) alter the finding, maintaining the sentence, or

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(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;

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14. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:-

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“8. ……………………………….Since a wide discretion is conferred on appellate courts, the limits of that courts’ jurisdiction must obviously be dictated by the exigency of the

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situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.

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9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise………………………….”

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15. This Court again in Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 had noted

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the power under Section 391 Cr.P.C. of the Appellate Court. Following was stated in Paragraph Nos. 1 and 2:-

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“1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section

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391) would reveal the same……………………

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2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused.

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This Court in the case of Rajeswar Prasad Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.”

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16. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people.”

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Therefore, in view of Section 391 of Cr.P.C., the additional evidence and further evidence means, the evidence already adduced by the accused or the complainant if they want to adduce additional evidence or examine any other witnesses, they can file application under Section 391 of Cr.P.C., the First Appellate Court can allow for adducing the evidence which is the additional evidence in addition to the evidence already adduced by the parties before the Trial Court which amounts to further evidence of parties, but it does not mean the First Appellate Court allowed for further cross-examination or allowing the defence evidence in the appellate stage. Learned counsel for the respondent/complainant rightly stated that the First Appellate Court can consider during final arguments and the matter can be remanded back if there is any irregularity committed in respect of Section 313 of Cr.P.C. or the Court can also remand the matter back for the purpose of allowing the accused to adduce defence evidence by setting aside the judgment of the Trial

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Court, but without setting aside the judgment of the Trial Court, the First Appellate Court cannot allow learned counsel for the accused for further cross-examination of PW.1 and also allowing the accused for leading any defence evidence is not permissible under Section 391 of Cr.P.C.

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Looking to the entire facts and circumstances of the case, I am of the view that the petitioner has not made out a good ground for setting aside the order of the First Appellate Court under Section 391 of Cr.P.C. by invoking power under Section 482 of Cr.P.C. If at all, the petitioner wants to lead further evidence or further crossexamination of PW.1 which was left out due to some difficulty or inconvenience caused to him, he can approach the First Appellate Court seeking remand of the matter for adducing further evidence or further cross-examination of PW.1 and adducing defence evidence. Therefore, the same cannot be done in the First Appellate Court.

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The Criminal Petition is dismissed. The First Appellate Court is directed to hear the final arguments. If the First Appellate Court feels that an opportunity should be given to the accused for the purpose of further crossexamination or leading defence evidence, it can proceed to pass the judgment in accordance with law.

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Sd/JUDGE

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Smt Divya a v. Sri Adiveppa Magadum

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Smt Divya a v. Sri Adiveppa Magadum

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