Allowed

Smt Akkamma G v. Sri Hemanth Kumar Yadhav H

Karnataka HC4 Apr 2022CRL.P/1362/2022

Case brief

AI extract

What is this about?

The High Court allowed a Criminal Petition under Section 482 Cr.P.C., quashing the trial court's order rejecting an application to recall a witness for further cross-examination. The Court held that the rejection was arbitrary and granted the petitioner an opportunity to examine the witness, subject to payment of costs and strict adherence to the timeline to prevent delay.

What did the court decide?

Criminal Petition allowed; impugned order quashed; petitioner permitted to further cross-examine P.W.1 on 19.04.2022 upon payment of Rs.3,000/- cost.

Smt Akkamma G Vs Sri Hemanth Kumar Yadhav H — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION No.1362 OF 2022

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BETWEEN:

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SMT.AKKAMMA G., W/O NAGARAJ AGED ABOUT 62 YEARS, R/AT NO.42, MATHRUSHREE KRUPA 2^ND FLOOR, 6^TH MAIN ROAD, MEENAKSHI NAGARA BASAVESHWARA NAGAR BENGALURU – 560 079.

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... PETITIONER

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(BY SRI GANESH G., ADVOCATE)

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AND:

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SRI HEMANTH KUMAR YADHAV H., S/O HANUMANTHARAYAPPA AGED ABOUT 28 YEARS, R/AT NO.74, PANWAR NIWAS 2^ND MAIN, 10^TH CROSS, HOYSALANAGAR SUNKADAKATTE BENGALURU – 560 001.

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... RESPONDENT

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(RESPONDENT SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 03.01.2022 IN C.C.NO.15205/2019, PENDING ON THE FILE OF THE XII A.C.M.M AT BENGALURU, AND PERMIT THE PETITIONER TO CROSS

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EXAMINE PW-1 TO ARRIVE AT A JUST CONCLUSION AT THE CASE BY ALLOWING THE CRL.P.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The Petitioner is before this Court calling in question the

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order dated 3.1.2022 passed in C.C.No.15205/2019 pending before the XII Additional Chief Metropolitan Magistrate, Bengaluru, whereby the learned Magistrate rejected the application filed by the petitioner under Section 311 of the Cr.P.C. seeking further cross-examination of P.W.1.

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Heard Sri.Ganesha.G., learned counsel appearing for

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petitioner.

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Facts in brief are as follows:

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Petitioner and respondent were in a transaction pursuant

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to which, the petitioner had issued a cheque in the name of the respondent. The said instrument having been presented for its realization was returned for want of sufficient funds. Legal proceedings were initiated by the respondent against the

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petitioner and when the amount was not realized, proceedings for offences punishable under Section 131 of the N.I.Act, 1881 were initiated by the respondent against the petitoner. IN the said proceeding the petitioner files an application under Section 311 Cr.P.C. seeking recalling of P.W.1 for further crossexamination. This application came to be rejected by the trial Judge on the score, inter alia , that the application is filed only to drag the proceedings further. It is challenging this order of rejection, the petitioner is before this Court in the subject petition.

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This Court, by its order dated 10.03.2022, granted an interim order of stay of further proceedings and directed issuance of emergent notice to the respondent returnable by this date.

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The respondent is served and remained unrepresented.

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The application is filed by the petitioner seeking further cross-examination of P.W.1 as he was partly cross-examined by

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D.W.1 counsel on 12.11.2021. On 12.11.2021 the case was

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adjourned, but the cross-examination of P.W.1 by D.W.1 stood closed. It is at that juncture the petitioner files an application under Section 311 of the Cr.P.C. This is rejected by the learned Magistrate, the rejection of which, is called in question in the subject petition.

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The petitioner had tendered cogent reasons seeking recalling of P.W.1 for further cross-examination. Rejection of the application by the learned trial Judge runs counter to the judgment rendered by the Apex Court in the case of V.N.PATIL

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v. K.NIRANJAN KUMAR¹ wherein it is held as follows:

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“13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:

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“ 311. Power to summon material witness, or examine person present .—Any court may, at any stage of any inquiry, trial or other proceeding under this Code, 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; and 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.”

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1 (2021)3 SCC 661

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14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion”.

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15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17)

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“17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason.”

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16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State

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of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11)

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“10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court

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is of the view that the application has been filed as an abuse of the process of law.”

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17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.”

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(Emphasis supplied)

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In the light of the law laid down by the Apex Court and the facts obtaining in the case at hand, I deem it appropriate to grant one final opportunity to the petitioner to further cross-examine P.W.1, as it is a facet of fair trial that the parties to the lis have to be given all adequate opportunity in the trial, more so, if the party seeking such opportunity is the accused. The grant of said opportunity will be on imposition of cost.

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The learned counsel appearing for the petitioner submits that the next date of hearing is on 19.04.2022 and he would complete the cross-examination on that day itself. The submission sounds acceptance.

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For the aforesaid reasons, the following:

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ORDER

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(i) Criminal Petition is allowed.

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(ii) The order dated 03.01.2022 passed in C.C.No.15205/2019 by the XII Additional Chief Metropolitan Magistrate, Bengaluru stands quashed.

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(iii) The petitioner shall be permitted to further crossexamine P.W.1 on 19.04.2022, subject to payment of cost of Rs.3,000/- payable to the wtiness-P.W.1.

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(iv) It is made clear the petitioner shall not drag on the proceedings and complete the cross-examination, on the very same day – 19.04.2022.

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Sd/JUDGE

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CT:MJ

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bkp

Smt Akkamma G v. Sri Hemanth Kumar Yadhav H

Case brief

What is this about?

What did the court decide?

Smt Akkamma G v. Sri Hemanth Kumar Yadhav H

Case brief

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What did the court decide?

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