P R CHANDRAN Vs. RAJENDRA PAPER SORES COIMBATORE

JUDGEMENT

(1.) THE order passed by the learned trial judge in Crl. M. P. No. 2274 of 2005 in C. C. No. 255 of 2003, on the file of the Judicial Magistrate No. V , Coimbatore, is under challenge before this Court in his revision.

(2.) THE complainant/respondent herein had filed the said application under Section 311 of Cr. P.C. , seeking the indulgence of the Court to permit him to recall P. W. 1 and then to mark two documents viz. Statement of accounts and confirmation letter of the accused dated 1. 4. 2002. THE respondent had filed a counter in the said application. After hearing both sides, the learned trial judge has allowed the application, which necessitated the accused to approach this Court by way of this revision.

(3.) THE Point:- 5 (a) THE learned senior counsel would contend that exercising the power of a Court under Section 311 of Cr. P.C. , is entirely different from exercising its power under Section 91 of Cr. P.C. Under Section 311 of Cr. P.C. , only if the Court is satisfied that the additional documents and evidence is necessary for arriving at a just decision the same can be allowed, whereas under Section 91 of Cr. P.C. , an order for send for any document or to let in any additional evidence, is left with the discretion of the parties concerned. 5 (b) THE learned senior counsel would contend that before the trial Court the evidence of the complainant is over and after the incriminating circumstances were put to the accused, D. W. 1 & D. W. 2 were examined on the side of the accused, and now the trial has come to an end and only the advocates to argue their respective cases, at this juncture the complainant only to fill up the lacuna has filed the said application under section 311 of Cr. P.C. , it cannot be entertained at all in lieu of theseveral ratio decidendi available. THE learned senior counsel relied on 1991 L. W. ( Crl ) 42 ( Govinda Reddy Vs. State), wherein in a similar circumstancea learned Judge of this Court has held that an application under Section 311 of Cr. P.C. , can not be encouraged. THE relevant observation of the learned Judge in the above dictum runs as follows:- "in this case, at no point of time, the prosecution had elicited from the Medical Officer that the injury found on P. W. 2, the victim, could have been caused at the time and in the manner alleged by the prosecution. THE prosecution, having failed to do so, at several stages, cannot be now permitted to fill in a lacuna after the defect was pointed out, during the course of arguments. " A similar view has been taken by the learned another judge of this Court in 1991 LW 475 (N. Lakshmanan Vs. THE Tamil Nadu Electricity Board, Tiruttani , rep. by its Executive Engineer Mr. M. Kuppuswamy ) and the relevant observation runs as follows:- "section 311 of Cr. P.C. , permits the court to any stage of the enquiry or trial or other proceedings to 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 an 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. It has been often emphasized that the very width of the power under this Section, required corresponding caution, before exercise of the power. THE only criterion for exercise of this power is that it should appear to the Court that the evidence sought to be placed was essential to the just decision of the case. " A similar view was taken by a learned Judge of this Court in 2001 (2) LW ( Cr l ) 534 (A. Radhakrishana n Vs. Income Tax Officer, City Circle 1 (4) Madras-34), wherein while referring the ratio decided in 1991 L. W. ( Crl ) 42 ( Govinda Reddy Vs. State), and 1991 LW 475 (N. Lakshmanan Vs. THE Tamil Nadu Electricity Board, Tiruttani , rep. by its Executive engineer Mr. M. Kuppuswamy ), the learned Judge has held that:- "when the above principles of law are applied to the facts of the present cases, I feel that the learned Magistrate has committed an error in allowing the petition filed by the respondent under Section 311 of Cr. P.C. , to enable the prosecution to fill in the lacunae, though the respondent had an opportunity at the time of trial to examine the witnesses. " 5 (c) Under the above application the complainant sought to exhibit two additional documents one the statement of accounts and another a confirmation letter sent by the accused dated 1/4/2002. But at the time of trial, the above said documents must be with the complainant and there is no reason stated in the application as to why he has not filed those documents while he was examined as P. W. 1 before the Court. As rightly pointed out by the learned counsel for the respondent Mr. A. M. Rahamat h Ali under Section 139 of the Negotiable Instruments Act the accused has got a right to rebut the evidence let in by the complainant. But after examination of the accused and his witnesses and after the submissions of his evidence before the trial court through his witnesses, in my view, it is not open to the complainant to reopen the case only for the purpose of filling up the lacuna. So I am of the view that the order passed by the learned trial Court in Crl. M. P. No. 2274 of 2005 in C. C. No. 255 of 2003 on the file of the Judicial Magistrate No. V , Coimbatore , is liable to be interfered with in this revision. Point is answered accordingly.