Interim Order 1

Order Details: Order
Pdf Text: 1 C. C. NO. 4444/SS/2018
ORDER BELOW EXHIBIT NO. 31
The complainant has forwarded present application with a prayer to
allow him to further examine the complainant and to allow him to
correct/rectify the typographical mistake occurred in para no. 10 of his
affidavit of examination-in-chief.
2. It is submitted by the complainant that in the month of November
2021, the evidence affidavit of complainant was filed. In the para no. 10 of
the said affidavit of examination-in-chief, there is typographical mistake and
it is wrongly mentioned that “goods supplied” instead of “Loan amount given
to the accused”. It is submitted by the complainant that if the application is
allowed to correct the said contention then nature of the complaint would
not be changed nor prejudice would cause to the accused. It is not the case
that he is trying to fill up the lacuna. Therefore, lastly prayed to allow the
application.
3. The accused has filed his reply below Exh. 33 and submitted that there
is no provision for further re-examination. Re-examination is permitted only
to clear ambiguity if any. It is not permissible to re-examine the witness to
fill up the lacuna. Therefore, he prayed to reject the application.
4. Heard. Perused the application and say.
5. The present complaint is filed U/s. 138 of Negotiable Instruments Act.
By way of present application, the complainant has asked for two fold
prayers. First one is to allow him to conduct further examination of the
complainant and second one is to correct/rectify the typographical mistake
occurred in para no. 10 of examination-in-chief of his evidence affidavit. So
far as the first prayer is concerned, it is the submission fo complainant that
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the in para no. 10 of his evidence affidavit, it is wrongly mentioned that,
“goods supplied” instead of “Loan amount given to the accused”. Ld.
Advocate for the complainant has submitted that the witness can be recalled
to reexamine if it is needed. He has placed reliance on the decision of
Hon’ble Kerala High Court in Valsamma V/s. Satheesh Kumar, 2001 (2) ALL
MR (Journal) 15. It has observed that,
5. In the present case, the complaint was filed alleging that the petitioner
issued a cheque for Rs. 30,000/-. Though the petitioner received the notice
issued by the complainant demanding the repayment of the amount
covered by the cheque, no reply was sent. When complainant was
examined, a statement was made by him that the petitioner borrowed Rs.
16,000/-. The prayer of the complainant was not for making a correction
of the above statement in the deposition, but for re-examination of the
witnesses to explain the circumstance and to establish that it was only a
mistake. The above statement made by the petitioner would remain in the
evidence. It is not a case where the complainant was trying to fill up a
lacuna in the prosecution case. When he says that it was an accidental
mistake in giving evidence, opportunity has to be given to explain the
circumstances. The petitioner would definitely get an opportunity to cross
examine the complainant and to establish his contention or to elicit the
true facts. If the court finds that in order to have a just and correct finding
it is necessary to examine or re-examine a witness, S. 313 empowers the
court to summon the above witnesses. It was not a case where the
complainant was trying to fill up the lacuna in the prosecution case. He
was seeking permission for explaining the circumstances or explaining a
mistake committed while giving the evidence. The court has power or
discretion under S. 311 Cr.P.C. to recall the witness at any stage of the trial
if it considers necessary for a just decision of the case. The Court below is
fully justified in allowing the above petition for further examination of the
complainant invoking S.311 of the Cr.P.C. Hence I find no reason to
interfere with the order of the court below and this revision has only to be
dismissed.
Ld. Advocate for the accused has submitted that the witness cannot be
recalled to fill up the lacuna. He has placed reliance on the decision of
Hon’ble Bombay High Court in Nayna Rajan Guhagarkar V/s. The State of
Maharashtra, Criminal Writ Petition No. 1658 of 2021, decided on
13/07/2021. It has observed that,
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“6 No doubt, under Section 311 Cr.P.C, any Court may, at any stage of any
inquiry, trial or other proceeding 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 it is essential to
the just decision of the case, however, at the same time, the said power
under Section 311 cannot be used to fill in the lacunae in the prosecution
evidence. Having regard to the peculiar facts of this case that the
impugned order issuing witness summons for recalling the complainant
and panch was passed after arguments were advanced and written
submissions were filed, on the aspect of memory card not being proved, it
was not permissible for the learned Judge to pass the impugned order.
The same, in the facts, would clearly tantamount to filling up the lacunae
in the case. It would also result in causing serious prejudice to the
petitioner”.
He has also placed reliance on the decision of Hon’ble Supreme Court
of India in Neha Begum & Ors V/s. The State of Assam & Anr., Petition(S) for
Special Leave to Appeal (Crl.) No. (s) . 3910/2024 (Arising out of impugned
judgment and order dated 19/01/2024 in CRPL No. 561/2021 passed by the
Gauhati High Court) . It has observed that,
“8. On a perusal of the subject application filed by the petitioners in the
trial Court by invoking the provisions under Section 231(2) read with
Section 311 CrPC, we find that other than a vague aspersion that the
erstwhile lawyer engaged by the petitioners did not conduct proper cross-
examination of the witnesses, no such specific ground was alluded on
behalf of the accused petitioners which could be considered to be a valid
ground for the trial Court to invoke the power under Section 311 CrPC.
9. Apparently thus, the prayer made by the petitioners in the application to
recall and re-examine the witnesses was nothing but an attempt to fill in the
lacuna. There is nothing on record to suggest that non summoning of the
witnesses for further cross examination could cause grave prejudice the
accused and that such a cause of action was essential for a just decision of
the case. ”
I have perused the cited decisions. I have also perused the decision of
Hon’ble Supreme Court of India in Rajaram Prasad Yadav V/s. State of Bihar
and Another, Criminal Appeal No. 830 of 2013 (@ SLP (Criminal) No. 2400
of 2011), decided on 04/07/2013. In this case, the following principles are
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laid down :-
“23. From a conspectus consideration of the above decisions, while dealing
with an application under Section 311 Cr.P.C. read along with Section 138
of the Evidence Act, we feel the following principles will have to be borne
in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is
needed by it? Whether the evidence sought to be led in under Section
311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311
Cr.P.C. should ensure that the judgment should not be rendered on
inchoate, inconclusive speculative presentation of facts, as thereby the
ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only
with the object of finding out the truth or obtaining proper proof for such
facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not
arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine
such a witness or to recall him for further examination in order to arrive at a
just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the
Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not
because it would be impossible to pronounce the judgment without it, but
because there would be a failure of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good sense should be the safe guard,
while exercising the discretion. The Court should bear in mind that no party in
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a trial can be foreclosed from correcting errors and that 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.
k) The Court should be conscious of the position that after all the trial is
basically for the prisoners and the Court should afford an opportunity to them
in the fairest manner possible. In that parity of reasoning, it would be safe to
err in favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a discretionary
power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the
nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is
likely to be tendered, would be germane to the issue involved and also ensure
that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court
only in order to meet the ends of justice for strong and valid reasons and the
same must be exercised with care, caution and circumspection. The Court should
bear in mind that fair trial entails the interest of the accused, the victim and the
society and, therefore, the grant of fair and proper opportunities to the persons
concerned, must be ensured being a constitutional goal, as well as a human
right.”
In the case in hand, I have perused the complaint and it seems that the
complainant came with a case that the accused has availed cash credit
facility/loan from the complainant. The accused has also entered into loan
agreement and credit facility/loan was disbursed to the accused. I have also
perused the demand notice filed by the complainant. In the demand notice
also, it is mentioned by the complainant that the accused approached to the
complainant for the purpose of business loan and the business loan was
sanctioned and disbursed the loan amount to the accused. Therefore, the
complainant came with a case that the loan was given to the accused. I have
perused the evidence affidavit and more particularly para no. 10. In the
para No. 10 of the evidence affidavit, it is mentioned that the accused has
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accepted the liability of repayment of loan. The accused has issued the
cheque in favour of complainant as payment towards on the said loan
amount. In the said paragraph, it is also mentioned that, “in discharge of the
debt and other liability of the payment for the goods supplied to the accused
as per aforesaid loan agreement.” It is the submission of complainant that
the word “goods supplied” is wrongly and due to typographical mistake
mentioned. Therefore, he wants to recall the complainant to explain the
circumstances regarding the said word mentioned in the evidence affidavit.
Perusal of the entire evidence affidavit, it prima-facie seems that the
complainant came with a case that the loan was disbursed to the accused.
Therefore, to clarify the said mistake, the witness is required to be recalled
and admittedly, the accused has also an opportunity to cross-examine the
said witness on this point.
6. The complainant came with another prayer that permission may be
granted to him to correct/rectify the said mistake. It is the submission of the
complainant that the mistake can be corrected or rectified. He has placed his
reliance on the decision of Hon’ble Bombay High Court, Nagpur Bench in
Maan Agro Centre V/s. Eid Parry (India) Ltd. & Anr., 2005 ALL MR (Cri.)
934, decided on 23/12/2004. It has observed that,
“14. If the principles laid down in the above two cases are taken into
consideration, it would be seen that in the present case no doubt Maan
Agro Centre through its proprietor was described as an accused and
initially the name of the proprietor viz. Aminullah Khan was not
mentioned in the complaint. However, one thing is certain that Maan
Agro Centre is the sole proprietary concern and Aminullah Khan is the
only proprietor thereof. In this view of the matter whether the accused
was described as Maan Agro Centre through its proprietor Aminullah
Khan or whether he is described Aminullah Khan proprietor of Maan
Agro Centre will make no difference. It would not cause any prejudice
whatsoever to the petitioner/accused. As such the Revisional Court was
fully justified in permitting the complainant to insert the name of
Aminullah Khan as the proprietor thereof. As observed by me earlier,
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whether Aminullah Khan is shown as accused in his capacity as
proprietor of Maan Agro Centre or whether he is shown as Maan Agro
Centre through proprietor Aminullah Khan would make no difference
and as such the complaint would be tenable. In this view of the matter, it
cannot be said that the Revisional Court exceeded its jurisdiction. In fact
the Revisional Court was fully justified in reversing the order of the
Magistrate. Thus I find no reason to interfere with the impugned order. I,
therefore, pass the following order :
i) The revision application is dismissed.
ii) The observations made in this judgment are limited
to the order below Exh.31 and 34 and they may not be
taken into consideration while deciding the complaint on
merits.
iii) Needless to say that the stay granted stands vacated.”
He has also placed reliance on the decision on Hon’ble Rajasthan High Court
in Oswal Finlease Private Limited V/s. State of Rajasthan & Anr. 2014 ALL
MR (Cri) Journal 365. It has observed that,
“6. Contention of the learned counsel for petitioner that mistake is
bonafide seems to be true. Respondent has relied on 2012 (2) Cr. L. R.
(Raj) 904, M. R. Choudhary v. State of Rajasthan where the complaint
was filed about a particular cheque whereas cheque submitted before
the trial court was different. Hence the accused was acquitted but here
in the present case, present petitioner wants to rectify his bonafide
mistake. Further reliance has been placed on AIR 2008 SC 3086 : [2008
ALL SCR 1761], Subodh S. Salaskar v. Jaiprakash M. Shah & Ors. where
on the facts of the case, amendments on the complaint has been
disallowed. But here in the present case, when complainant has been
cross examined, the mistake came to the notice of complainant and
application for the rectification has been moved and no person could be
penalized for his bonafide mistake. ”
He has also placed reliance on the decision of Hon’ble Calcutta High Court in
Newport Express Services Pvt. Ltd. & Ors V/s. The State of West Bengal &
Anr., 2013 ALL MR (Cri) Journal 140. It has observed that,
“4. I have given my anxious and thoughtful consideration to the rival
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submissions of the parties. Now, from perusal of both the petition of
complaints, I find it is true that in the cause title, the complainant has been
described as Freight Systems (India) Limited, however, by going through the
petition of complaint, I find the person through whom such complaints were
filed in Court in every pages of the petition of complaints, described him and
signed as the authorized signatory of Freight Systems (India) Private
Limited, i.e., the payee of the cheque. I further find the said complaints were
initially filed by the company through its authorized representative Debasish
Mukherjee and subsequently he was substituted by one Babul Samanta. The
said Babul Samanta in his evidence on affidavit categorically stated that
such complaint was filed by him being the authorized representative of
Freight Systems (India) Private Limited. In the board resolution filed both by
Debasish Mukherjee and Babul Samanta it has been categorically mentioned
that they have been authorized to file the said complaints and pursue the
criminal proceedings arising thereof by Freight Systems (India) Private
Limited. In the Vakalatnama filed in connection with the said cases the
executant has also been described as the authorized signatory of Freight
Systems (India) Private Limited. Therefore, the identity of the complainant's
company, the payee of the cheque has been well established by sufficient
materials, which are on record. The mis-description of the complainant's
company in the cause title of the petition of complaints, is merely a bona
fide typographical mistake, which does not touch the merits of the case. The
error in the cause title of the petition of complaints cannot be said to have
vitiated the proceeding and accordingly the question of quashing of the
complaints does not at all arise. ”
I have perused the above cited decisions and perusal of it makes clear
that bonafide typographical mistake in the complaint is required to be
allowed to be corrected. But in the case in hand, as per the submission of
the complainant, the mistake occurred in his evidence affidavit. Therefore,
the facts of the cited decisions are different from the facts in the case in
hand. Therefore, the mistake occurred in the evidence affidavit cannot be
corrected.
7. In the light of above discussion, the application is required to be
partly allowed and permission is required to be granted to recall the
complainant to explain the circumstances in respect of typographical mistake
occurred in the para no. 10 of the evidence affidavit i.e. the word “goods
supplied” instead of “Loan amount given to the accused”. It need not
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necessary to mention that the accused has an opportunity to cross-examine.
Hence, I pass following order:-
ORDER
1. Application is partly allowed.
2. Permission is granted to recall the complainant to re-examine to the
extend of typographical mistake occurred in para no. 10 of his evidence
affidavit.
3. The accused has an opportunity to conduct further cross-examination.
Date : 31/07/2026 Sd/-
(Y. P. Pujari)
Judicial Magistrate (First class)
48th Court, Andheri, Mumbai.
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