BIR SINGH Vs. SUNBEAM ENGINEERING CORPORATION

JUDGEMENT

(1.) THIS is a petition filed by the petitioner against the order dated 20.04.2011 passed by the learned ACMM by virtue of which the application of the petitioner/accused under Section 311 Cr. P.C. for recalling /re-examination of the complainant as a witness for further cross-examination and for filing additional affidavit of the accused/Bir Singh along with the documents in his defence has been dismissed.

(2.) BRIEFLY stated the facts of the case are that the respondent had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the present petitioner/accused. The complainant had adduced his evidence and thereafter the statement of the accused was recorded and an opportunity was given to the accused to adduce his defence. The accused did not adduce any evidence despite sufficient opportunities having been given on account of which the learned Trial Court closed the defence of the accused /petitioner on 26.06.2010 and listed the matter for final arguments on 11.08.2011. The accused/petitioner filed an application for recalling the complainant for further cross examination and also for filing his own additional affidavit along with the documents in order to establish that no offence has been committed by him. The ground for recalling the complainant was that the counsel who was representing the accused/petitioner earlier had not asked certain relevant questions to the complainant which are very vital for his defence. So far as the filing of the additional affidavit and documents are concerned, no plausible explanation has been given. The learned Magistrate after hearing the arguments rejected the application on the ground that the non-examination of the complainant by the earlier counsel cannot be set up as a ground for recalling of the witness for further cross examination. It was observed, in case, it is permitted to be done then practically in every case the accused at any stage can say that his earlier counsel has not asked the appropriate questions to the witness and therefore, he may be permitted to recall the witness. Accordingly, the application was dismissed.

(3.) I have heard the learned counsel for the petitioner and have also gone through the order as well as the other documents filed along with the petition. The learned counsel for the petitioner has relied upon the observations passed by the Apex Court in the case titled Krishna Janardhan Bhat Vs. Dattatraya G. Hedge (2008) 4 SCC 54 wherein it has been observed as under: Lacuna in the prosecution must be understood as the inherent 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 errors. If proper evidence was not adduced or a relevant material was not brought on record due to any 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 performed better.