Ravindranath Shinde vs Shankarappa

K.N. Phaneendra, J.—These Criminal Petitions are filed against a common order passed by the Civil Judge & JMFC, Shiggaon in CC No. 69/2004 dated 25.2.2014 on the applications filed by the petitioner herein (petitioner before the trial Court) u/s. 91 and 311 of Cr.PC. It is an admitted fact that the complainant by name Shankarappa filed a case against the accused (petitioner herein) for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881. During the course of trial, the accused has taken up the defence that the disputed cheque involved in the said case was lost by him and he filed a complaint in that regard in the Cubbon Park Police Station and the Police have issued an endorsement on 22.1.2004 with regard to the complaint pertaining to the missing of the cheque. During the course of evidence, that endorsement Ex. D2 was got marked by the accused. In order to disprove this particular document, the complainant also obtained some documents from Cubbon Park Police Station by filing an application under the Right to Information (RTI) Act. The said document was also marked before the Court as Ex. C1. PW2, the Police Inspector, City Special Branch, Bangalore has also been examined to prove Ex. C1. In the evidence, he has stated that he has issued Ex. C1. But during the course of cross examination, he has stated that on 22.1.2004, he was not working in the Cubbon Park Police Station and he has not seen the C.Mis. Register before coming to the Court. Therefore, the document Ex. D2 perhaps had not been confronted to this witness in order to elicit that Ex. D1 which is the endorsement alleged to have been issued by the Cubbon Park Police. Station. Ex. C1, the document copy which is produced before this court shows that an endorsement was issued stating that on 22.1.2004 Sri. Ravindranath Shinde (accused) lodged a complaint before the Cubbon Park Police Station, but on examination of the documents maintained in their Police Station, it was found that there was no complaint lodged by one Sri Ravindranath Shinde on 22.1.2004 with respect to loss of cheque No. 098158 is available. Another document which is marked at Ex. D1 issued by the Police Inspector to one Sri Karibasappa shows that the Police Inspector attached to Cubbon Park Police Station issued an endorsement stating that the said Karibasappa has claimed the information under the Right to Information Act and in pursuance of the same, an endorsement was given after examination of the C.Mis. Register in the Cubbon Park Police Station to the effect that on 29.1.2004, an acknowledgement was issued in C.Mis. No. 105B/2004. They have also stated that no documents pertaining to the said Registration Number are available in the Police Station.

In view of the above said documents, the petitioner made an application u/s. 91 of the Cr.PC. in order to set at rest the anomaly found in these documents to summon the C.Mis. Register in which C.Mis. 105B/2004 is recorded, to ascertain whether any complaint was lodged by the accused and on the basis of such complaint, C.Mis. was registered and acknowledgement was given as per Ex. D2. The anomaly raised by the accused as argued by the learned Counsel is that in Ex. C1 there is absolutely no mention that any case has been registered in C.Mis. case, as stated in Ex. D1 and it is also stated in Ex. C1 that no complaint was given in that regard. Ex. D2 discloses that it is an endorsement issued by the police on 22.1.2004. The said document refers to a complaint regarding loss of missing of cheque No. 098158 lodged before the Cubbon Park Police Station, Bangalore. Therefore, whether on 22.1.2004 any complaint has been lodged by the accused and the same was registered as C.Mis. 105B/2004 or not and if so what are the contents of the said complaint and whether any such complaint has been lodged by the accused on that particular day or not, or whether any complaint was lodged on 29.1.2004 and the same was registered in C.Mis. 105B/2004 and what exactly the entries made in C.Mis. Register, to bring all those facts before the Court perhaps the accused has made an application u/s. 91 to divulge all these aspects by means of production of the said original register before the court. The said application was dismissed by the trial Court. Though the learned Magistrate has considered the ruling of the Hon''ble Supreme Court reported in Iddar and Others Vs. Aabida and Another, , but he failed to understand the real object behind the said ruling. The main object is to provide an opportunity to the parties in the proceedings particularly to the accused.

Here, in this particular case, it is an undisputed fact that both the complainant and the accused examined before the court and got some of the documents marked and after marking of these documents and after going through the said documents accused must have felt that there is an anomaly in proving Ex. D2 before the Court. Therefore, in order to prove Ex. D2 before the Court that he has given the complaint on 22.4.2004 itself with regard to the loss of the cheque. Therefore, he has made an application to secure the document that the original register to be marked before the Court. The learned Magistrate in fact has mentioned at page 9 of his order in the following manner:

It is for the accused to make out his defence by producing sufficient material before this court and burden lies on him to prove his defence. So there is no sufficient material placed by the accused to summon the C.Mis. register from Cubbon Park Police Station as sought for.

When the learned Magistrate is of the opinion that the accused has to prove his defence, unless a fair opportunity is given to the accused, it cannot be said that the accused has not proved his case, after giving sufficient opportunity to both the parties and after perusal of the entire oral and documentary evidence, the court has to arrive at a conclusion that either of the parties has not proved his case. Providing opportunity is the hall-mark of the criminal jurisprudence. A fair trial is the fundamental right of the accused person as well as the complainant when the accused has sought for an opportunity to prove his case by means of summoning a document, which is based on other documents before the court, it is the duty of the Court to provide such opportunity irrespective of some delay in making such application.

In my opinion, the learned Magistrate ought to have provided such an opportunity to the accused. One more aspect to be borne in mind by the trial Court is that the contention or the defence of the accused is that he lost the cheque prior to 22.1.2004 itself and he makes an allegation that the complainant came to the possession of this cheque by some clandestine manner and falsely implicated the accused into the crime alleged u/s. 138 of the Negotiable Instruments Act. If the accused is able to establish his defence, that will definitely go to the root of the complainant''s case. Therefore, when such an opportunity is sought, to prove the defence of the accused, naturally the court has to provide an opportunity to the accused.

Of course, as argued by the learned Counsel for the respondent, there is a long delay in disposing of this matter. The criminal case is registered in the year 2010 itself. He also brought to my notice that another cheque bounce case is also lodged by the complainant against this accused in CC No. 277/2004 wherein a similar defence has been taken by the accused in the said case. In the said case, arguments were heard and the judgment was reserved for pronouncement, but there is a direction from this court for disposing of the said case along with this case.

Looking to the above said admitted facts, in my opinion, an expeditious action has to be taken by the learned Magistrate to dispose off this matter along with other matter, it does not mean to say that the learned Magistrate has to dispose of the case hurriedly without giving fair opportunity to the parties.

In the above said circumstances, in my opinion, the petitioner/accused has made out a good case for allowing his application filed u/s. 91 of Cr.PC. The petitioner/accused has also made an application u/s. 311 of Cr.PC seeking permission to recall PW1 to cross examine further.

The learned Counsel for the respondent has raised an important question that in the application filed for recalling of PW1, absolutely there is no mention as to what are the grounds for recalling of PW1 and what are the aspects left out and what is the cross examination that the accused proposed to do by recalling PW1. Of course, the learned Counsel for the petitioner also admit that, the application is not clear and no such information has been given. But according to him, he has gathered some information which have to be disclosed or divulged only during the course of cross examination. If the entire factual aspects on which the accused wants to cross examine PW1 is revealed in the application itself, then PW1 would come fully prepared to answer those questions. Then the very purpose of cross examination would be defeated. It is a well recognized principle of law that there should be some grounds for recalling of PW1 that does not mean to say divulging of all the factual aspects which are proposed to be cross examined during the course of cross examination of PW1. In view of the above said anomalies with regard to Ex. D1, D2 and Ex. C1, and also in my opinion when the accused has taken up the defence of loss of cheque and that the complainant has by clandestine method obtained the said cheque by some other means, which goes to show that he has got some more material to cross examine PW1. Merely because he has not divulged every fact in the application, it will not debar him from recalling PW1 and cross examine him.

In the above said circumstances, the opportunity for cross examination if it is given by recalling PW1, there may be some prejudice or inconvenience caused to PW1. But, there is no such allegations made that would prejudice or cause injustice or inconvenience, that is going to be caused to PW1. When such things are not there, in my opinion by means of imposing certain cost for not having cross examined PW1 at the earlier stages, the said application also deserves to be allowed. However, it is made it clear that the accused need not wait for cross examination of PW1 till the arrival of C.Mis. Register as sought for u/s. 91 of Cr.PC as the learned Counsel for the petitioner contended that he has not proposed to cross examine PW1 on the documents Ex. D1, D2 and C1. Therefore, in the above said circumstances, as the parties have to approach the trial Court with the copy of this order and on the date of production of the copy, the accused shall be ready to cross examine PW1 if PW1 is tendered for cross examination unless court feels it is just to adjourn the case for any other valid reason. With these observations, the learned Magistrate is hereby directed to issue summons to the competent Police Officer of Cubbon Park Police Station to produce C.Mis. Register as sought for u/s. 91 of Cr.PC. Further, the accused is also hereby directed to furnish the process immediately along with the copy of this order before the trial Court.

Accordingly, the Petitions are allowed. Consequently, the applications filed u/s. 91 and 311 of Cr.PC by the accused before the trial Court are hereby allowed on payment of cost of Rs. 1,000/- (Rupees One thousand only) payable to the complainant. The accused shall co-operate and assist the court by furnishing process for summoning the said documents before the trial Court while producing the copy of this order. The accused shall also cross examine PW1 on the same day and the learned counsel for the respondent (complainant herein) is also hereby directed to tender PW1 for cross examination on the day of producing copy of this order to the trial Court and the accused shall not seek for any adjournment for cross examination of PW1 unless the court feels otherwise for valid reasons. The trial Court is directed to dispose of the matter on merits preferably within three months from the date of receipt of the copy of this order being un-influenced by the observations made above.