Allowed

M/S Brainchamber Polysacks Pvt. Ltd., v. M/S Tulsyan Nec Limited

Karnataka HC3 Sept 2024CRL.P/7750/2024

Case brief

AI extract

What is this about?

Accused in a cheque dishonour case sought recalling of PW.1 for further cross-examination under Section 311 CrPC; the trial court had rejected it as a delaying tactic. The High Court, relying on Varsha Garg, quashed that order and permitted one final opportunity to conclude further cross-examination on a date fixed by the trial court.

What did the court decide?

Order dated 28.06.2024 rejecting Section 311 application quashed; petitioners permitted to further cross-examine PW.1 on a date fixed by trial court, as last opportunity.

M/S Brainchamber Polysacks Pvt. Ltd., Vs M/S Tulsyan Nec… — Cheque Dishonour | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

¶7

CRIMINAL PETITION NO. 7750 OF 2024

¶8

BETWEEN:

¶9

M/S BRAINCHAMBER POLYSACKS PVT. LTD., HAVING ITS OFFICE AT SY NO.112/1B, APPACHIWADI ROAD, KURLI, TALUK CHIKKODI, KARNATAKA - 591 241 REP. BY ITS DIRECTOR, SRI UDAYSINH SHRIKANT GHATGE

¶10

Digitally signed by KAVYA G Location: High Court of Karnataka

¶11

SRI UDAY SINH SHRIKANT GHATGE AGED ABOUT 40 YEARS DIRECTOR, M/S BRAINCHAMBER POLYSACKS PVT. LTD., 158, E WARD, GHATGE MALA, KADAMWADI, NEAR HANUMAN MANDIR, KOLHAPUR - 416 003

¶12

…PETITIONERS

¶13

(BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE)

¶14

¶15

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶16

AND:

¶17

M/S TULSYAN NEC LIMITED A COMPANY REGISTERED UNDER THE INCIAN COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO.37, KAVERIAPPA LAYOUT, MILLER TANK BUND ROAD, VASANTHNAGAR, BENGALURU - 560 052 REP. BY ITS AUTHORISED PERSON, R P SHANTHKUMAR

¶18

…RESPONDENT

¶19

(BY SRI. SHANKAR M NAIK., ADVOCATE)

¶20

THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DTD 28.06.2024 PASSED ON APPLICATION FILED U/S 311 OF CR.P.C., IN CC.NO.51091/2023, FOR THE OFFENSES P/U/S 138 OF NI ACT, PENDING ON THE FILE OF THE HONBLE XIV ACMM, MAYO HALL UNIT, BENGALURU AND CONSEQUENTLY ALLOW THE APPLICATION FILED THEREIN U/S 311 OF CR.P.C., BY THE PETITIONER HEREIN IN CC.NO.51090/2023.

¶21

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶22

CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

¶23

¶24

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶25

ORAL ORDER

¶26

The petitioners are before this Court calling in question an order dated 28.06.2024 passed in C.C.No.51090/2023 in a proceeding registered for offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

¶27

Heard the learned counsel Sri.Prabhugoud B. Tumbigi, appearing for the petitioners and the learned counsel Sri.Shankar M. Naik, appearing for the respondent.

¶28

The petitioners are accused Nos.1 and 2. The issue

¶29

in the case at hand is not with regard to the merit of the matter. The learned counsel for the petitioners files an application under Section 311 of the Cr.P.C., seeking recalling of PW.1 for further cross-examination. This comes to be rejected by the impugned order on the score that the application is filed only as a ruse to drag the proceedings before the concerned Court. It is this, that has driven the petitioners to this Court, in the subject petition.

¶30

4 - NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶31

Learned counsel appearing for the petitioners

¶32

submits that if one opportunity is granted, he would finish the further cross-examination of PW.1 on the very same day fixed by the concerned Court.

¶33

Learned counsel for the respondent would submit

¶34

that if he is finishing the further cross-examination of PW.1 on the same day, he would have no objection, but it should not permit the petitioners to drag the proceedings any further.

¶35

The submission is placed on record.

¶36

It becomes apposite to refer to the judgment of the

¶37

Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH¹ , wherein it has held as follows:

¶38

“ 31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”:

¶39

1 2022 SCC OnLine SC 986

¶40

¶41

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶42

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

¶43

(ii) Recall and re-examine any person who has already been examined.

¶44

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court “shall” summon and examine or recall and re-examine any such person “if his evidence appears to the Court to be essential to the just decision of the case”. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

¶45

33. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

¶46

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

¶47

“16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and reexamining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points

¶48

6 - NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶49

out the desirability of some evidence being taken, then the court has to exercise its power under this provision — either discretionary or mandatory — depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.”

¶50

35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the “evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.” In that context the Court observed:

¶51

“18 …Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.”

¶52

36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P .¹⁹ , State of W.B. v. Tulsidas Mundhr a²⁰ , Jamatraj Kewalji Govani v. State of Maharashtr a²¹ , Masalti v. State of U.P.²² , Rajeswar Prosad Misra v. State of W.B .²³ and R.B. Mithani v. State of Maharashtr a²⁴ , the Court held:

¶53

¶54

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶55

“27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.”

¶56

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.”

¶57

In the light of the law laid down by the Apex Court

¶58

in the afore-quoted judgment, I deem it appropriate to allow the application so filed by the petitioners and permit the petitioners to further cross-examine PW.1 on the day fixed by

¶59

the concerned Court. The date shall be assigned by the concerned Court to a particular day and the petitioners shall conclude their further cross-examination on the said date. It is

¶60

made clear that this would be the last opportunity to the

¶61

8 - NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶62

petitioners to further cross-examine the PW.1. No application

¶63

of the kind that is now being agitated will be permitted to be filed by the petitioners, all over again.

¶64

9. For the aforesaid reasons, the following:

¶65

ORDER

¶66

i) The criminal petition is allowed;

¶67

ii) The order dated 28.06.2024 passed on the application in C.C.No.51090/2023, by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.

¶68

iii) The application filed by the petitioners under Section 311 of the Cr.P.C., is allowed.

¶69

iv) The concerned Court shall fix a date for further cross-examination of PW.1 and the further cross-examination shall conclude on the date so fixed by the concerned Court.

¶70

¶71

NC: 2024:KHC:35795 CRL.P No. 7750 of 2024

¶72

v) It is made clear that the petitioners shall not be granted any adjournment for further

¶73

cross-examination on the said date.

¶74

vi) The concerned Court is directed to regulate its procedure bearing in mind the observations made in the course of the order.

¶75

Ordered accordingly.

¶76

Sd/(M.NAGAPRASANNA) JUDGE

¶77

KG List No.: 1 Sl No.: 39

M/S Brainchamber Polysacks Pvt. Ltd., v. M/S Tulsyan Nec Limited

Case brief

What is this about?

What did the court decide?

M/S Brainchamber Polysacks Pvt. Ltd., v. M/S Tulsyan Nec Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Thoufiq Sharif Vs the State

Mr. Maqsood Ali Vs the State of Karnataka

Ananda Kumara D R Vs State of Karnataka

V S Suresh Vs State of Karnataka

Sri Vishnuvardhan a Vs State of Karnataka

Mr Nitin S Vs the State of Karnataka