Case Note & Summary
The petitioner-complainant, Sri S Sudarshan, filed a criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order dated 5.3.2016 passed by the XVI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.3202/2014. The trial court had dismissed the complainant's applications filed under Section 311 CrPC and Section 63 of the Indian Evidence Act, 1872. The complainant had initiated proceedings against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in C.C.No.3202/2014. During the trial, the complainant filed an application under Section 311 CrPC and Section 63 of the Evidence Act to recall PW-1 for the purpose of marking a xerox copy of the postal acknowledgment receipt of the legal notice sent to the accused. The trial court dismissed the applications, leading to the revision petition. The High Court heard the learned counsel for the petitioner-complainant, while the counsel for the respondent-accused was absent. The court observed that the trial court had not considered the applications in the proper perspective and that the complainant had sought to mark the postal acknowledgment receipt, which was crucial to prove service of legal notice under Section 138 NI Act. The court held that the trial court has wide powers under Section 311 CrPC to summon and recall any witness for a just decision of the case, and that secondary evidence under Section 63 of the Evidence Act is admissible when the original is lost. Accordingly, the High Court allowed the revision petition, set aside the impugned order, and permitted the complainant to recall PW-1 and mark the xerox copy of the postal acknowledgment receipt as secondary evidence.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - The trial court dismissed the application for recall of PW-1 without considering that the complainant sought to mark a crucial document (postal acknowledgment) which was inadvertently not marked earlier - Held that the court has wide powers under Section 311 CrPC to summon and recall any witness for just decision of the case (Paras 4-6). B) Evidence Act - Secondary Evidence - Section 63 Evidence Act - The complainant sought to mark a xerox copy of the postal acknowledgment receipt as secondary evidence, as the original was lost - Held that secondary evidence is admissible under Section 63 of the Evidence Act when the original is lost or not available (Paras 4-6). C) Negotiable Instruments Act - Dishonour of Cheque - Section 138 NI Act - The complainant in a cheque dishonour case sought to mark the postal acknowledgment to prove service of legal notice - Held that the acknowledgment is crucial to prove the statutory notice requirement under Section 138 NI Act (Paras 3-6).
Issue of Consideration
Whether the trial court erred in dismissing the complainant's applications under Section 311 CrPC and Section 63 of the Evidence Act seeking to recall PW-1 and mark a xerox copy of the postal acknowledgment receipt of legal notice.
Final Decision
The High Court allowed the criminal revision petition, set aside the impugned order dated 5.3.2016 passed by the XVI Addl. C.M.M., Bangalore, in C.C.No.3202/2014, and permitted the complainant to recall PW-1 and mark the xerox copy of the postal acknowledgment receipt as secondary evidence.
Law Points
- Section 311 CrPC
- Section 63 Evidence Act
- Section 138 NI Act
- recall of witness
- secondary evidence
- postal acknowledgment
