The High Court of Karnataka dismissed three criminal petitions challenging the Madras Metropolitan Magistrate's order recalling a witness and allowing interchange of wrongly marked documents in cheque bounce cases, holding no illegality existed.
All three criminal petitions filed under Section 482 Cr.PC stood dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:28045 CRL.P No. 3714 of 2023 C/W CRL.P No. 3715 of 2023 CRL.P No. 3718 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 3714 OF 2023
C/W
CRIMINAL PETITION NO. 3715 OF 2023 CRIMINAL PETITION NO. 3718 OF 2023
IN CRIMINAL PETITION NO. 3714 OF 2023:
BETWEEN:
M/S EMINENT CORP. REPRESENTED BY ITS PROPRIETOR MR RAJSHEKAR, S/O LATE BALAKRISHNA M AGED ABOUT 43 YEARS OFFICE AT NO 210, 9TH 'B' MAIN 2ND CROSS, VIJAYANAGAR BENGALURU-560 040.
…PETITIONER
(BY SMT. BRINDA K VARMA, ADVOCATE)
Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA
AND:
M/S UNNATHI DIGITAL SOLUTIONS LLP REPRESENTED BY ITS DIRECTOR MR YOGESH MEHTA FATHER NAME NOT KNOWN, MAJOR NO 94/2, BEHIND SHARADA TALKIES PARALLEL TO TOWN HALL, S P ROAD BENGALURU-560 002.
…RESPONDENT
(BY SRI. SAMARTH PRAKASH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED XXVII ADDITIONAL METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.30307/2021 DATED 23.02.2023 AND DIRECT THE TRIAL COURT TO PROCEED THE MATTER BY HEARING ARGUMENTS ON MERITS.
NC: 2023:KHC:28045 CRL.P No. 3714 of 2023 C/W CRL.P No. 3715 of 2023 CRL.P No. 3718 of 2023
IN CRIMINAL PETITION NO. 3715 OF 2023:
BETWEEN:
M/S EMINENT CORP. REPRESENTED BY ITS PROPRIETOR MR RAJSHEKAR, S/O LATE BALAKRISHNA M AGED ABOUT 43 YEARS, OFFICE AT NO. 210, 9TH 'B' MAIN 2ND CROSS, VIJAYANAGAR, BENGALURU-560 040.
…PETITIONER
(BY SMT. BRINDA K VARMA, ADVOCATE)
AND:
M/S UNNATHI DIGITAL SOLUTIONS LLP, REPRESENTED BY ITS PARTNER, MR YOGESH MEHTA, FATHER NAME NOT KNOWN, MAJOR, NO 94/2, BEHIND SHARADA TALKIES PARALLEL TO TOWN HALL, S P ROAD,BENGALURU-560002.
…RESPONDENT
(BY SRI. SAMARTH PRAKASH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO INTERFERE IN THE MATTER IN EXERCISE OF THE INHERENT POWER AND SET ASIDE THE ORDER PASSED BY THE LEARNED XXVII ADDITIONAL METROPOLITAN MAGISTRATE, BENGALURU IN CC NO. 30308/2021 DATED 23.02.2023 AND DIRECT THE TRIAL COURT TO PROCEED THE MATTER BY HEARING ARGUMENTS ON MERITS.
IN CRIMINAL PETITION NO. 3718 OF 2023:
BETWEEN:
M/S EMINENT CORP. REPRESENTED BY ITS PROPRIETOR MR RAJSHEKAR, S/O LATE BALAKRISHNA M AGED ABOUT 43 YEARS, OFFICE AT NO 210, 9TH 'B' MAIN, 2ND CROSS, VIJAYANAGAR,BENGALURU-560 040.
…PETITIONER
(BY SMT. BRINDA K VARMA, ADVOCATE)
AND:
M/S UNNATHI DIGITAL SOLUTIONS LLP, REPRESENTED BY ITS PARTNER, MR YOGESH MEHTA, FATHER NAME NOT KNOWN MAJOR, NO. 94/2, BEHIND SHARADA TALKIES PARALLEL TO TOWN HALL, S P ROAD, BENGALURU-560002.
…RESPONDENT
(BY SRI. SAMARTH PRAKASH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED XXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN CC.NO.30310/2021 DATED 23-02-2023 AND DIRECT THE TRIAL COURT TO PROCEED THE MATTER BY HEARING ARGUMENT ON MERITS.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
NC: 2023:KHC:28045 CRL.P No. 3714 of 2023 C/W CRL.P No. 3715 of 2023 CRL.P No. 3718 of 2023
ORDER
In all these petitions, the parties are the same and the issue involved is similar. Hence, taken up together and disposed of by common order.
2. Heard the learned counsel for the petitioner - accused and the learned counsel for the respondent.
3. The respondent had filed private complaints under Section 200 of Cr.PC for the offence punishable under Section 138 of N I Act alleging that, three cheques were issued by the accused towards legally recoverable debt, and when presented for realization were dishonoured for want of funds. In the said proceedings, at the stage of arguments, the respondent filed a applications under Section 311 of Cr.PC for recalling PW1 for further examination-in-chief, and to interchange the sworn statement affidavit, plea, statement of accused recorded under Section 313 of Cr.PC, and the documents, which were wrongly marked, and get it produced, and marked in the appropriate case. The learned Magistrate allowed the application for recalling PW1 for further examination-in-chief, and also permitted to interchange the sworn statement affidavit, and the documents marked in the instant case to the appropriate case, and vice versa.
4. The contention of the learned counsel for the petitioner is that, in the absence of any provision to interchange the sworn statement and documents marked, the
impugned order passed by the learned Magistrate is one without authority of law.
5. The learned counsel for the respondent submits that, in the absence of any expressed opinion, the learned Magistrate has got inherent power to do the right and to undo a wrong in the course of administration of justice. In support, he places reliance on the decision of the Bombay High Court in the case of M/s.Ahura Mazda Diairy Farm Pvt. Ltd. & ors. -vsSuresh Gopaldas Chawala & anr. (2012 (4) BC 697.
6. Considered the submissions of the learned counsel for the parties.
7. Admittedly, the respondent had lodged three private complaints for taking cognizance for the offence punishable under Section 138 of NI Act in respect of three cheques, which were dishonored and alleged to have been issued by the petitioner towards legally recoverable debt. The complainant inadvertently filed the sworn statement affidavit and got marked the documents not relating to the appropriate case , and to set right the same, an application under Section 311 of Cr.PC was filed to interchange the sworn statement affidavit, and the documents marked in the instant case to the appropriate case and vice versa. The learned Magistrate at para-15 has held as follows:
15. The principle laid down in the aforesaid rulings is aptly applicable to the case on hand. Just because, the sworn statement, affidavit and the documents which ought to have been marked in some other case is marked in the instant case, the accused cannot take
advantage of the same. That apart, as per Sec.311 of Code of Criminal Procedure the court at any stage of the proceeding can 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 if his evidence appears to the court as essential for the just decision of the case. It is to be noted that, in the ruling reported in 1999 (6) SCC 110 decided between Rajendra Prasad V/s Narcotic Cell, Hon’ble Apex Court while considering the application filed U/sec.311 of Code of Criminal Procedure held that:
“lacunae in the prosecution must be understood as the in-herent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacunae”. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any in inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties perform better.
In the light of the principle laid down above, if the complainant is permitted to inter change the sworn statement affidavit, Plea, statement of accused recorded U/sec. 313 of Cr.P.C., and the documents which are wrongly marked and get it produced and marked in the appropriate case, in my view the same would meet ends of justice and the same will help the court to arrive at a just decision of the case and the accused will also get opportunity to cross-examine PW1 on the same. As such, this court is of the view that an opportunity is to be provided to the complainant to prove his case by interchanging the documents."
8. The petitioner cannot take advantage of the mistake which is genuine, and in the absence of any prejudice caused to the accused herein, I do not find any illegality in the impugned order passed by the learned Magistrate. Accordingly, I pass the following:
ORDER
Criminal petitions stand dismissed.
Sd/JUDGE
BKM
3 issues framed by the court
Whether the learned Magistrate acted without authority of law in recalling a witness and allowing interchange of wrongly marked documents and affidavits.
Whether genuine inadvertence in lodging private complaints for cheque bounce allows correction through inherent powers to ensure justice.
Whether the petitioner can take advantage of the appellant's genuine mistake in marking documents in the wrong case.
Colour shows how this judgement treated each authority
M/s. Ahura Mazda Diairy Farm Pvt. Ltd. & ors. -vs Suresh Gopaldas Chawala & anr.Relied on¶52
M/s. Ahura Mazda Diairy Farm Pvt. Ltd. & ors. -vs Suresh Gopaldas Chawala & anr. (2012 (4) BC 697
Rajendra Prasad V/s Narcotic CellExplained¶57
Rajendra Prasad V/s Narcotic Cell, 1999 (6) SCC 110 · Who else cites this
4 provisions across 2 enactments
M/S Eminent Corp.
M/S Unnathi Digital Solutions LLP
Hemant Chandangoudar
As recorded by the court registry
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