Case Note & Summary
The petitioner, Vasantha Amin, was the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent, Shekara N.H., for dishonour of a cheque of Rs. 6 lakhs. After the trial concluded and the matter was set down for judgment, the trial court suo motu found that a sale agreement dated 02.12.2006 executed between the parties was necessary for a fair decision. The court directed the complainant to take steps to mark the document and allowed an application under Sections 311 and 91 Cr.P.C. to reopen the case for further examination of PW.1. The petitioner challenged this order before the High Court under Section 482 Cr.P.C. The High Court held that the trial court's action was without jurisdiction and amounted to filling gaps in the prosecution case. The court observed that the power under Section 311 Cr.P.C. is not intended to be used suo motu to recall witnesses after the case is reserved for judgment, especially when the document was not part of the evidence. The High Court set aside the impugned order, allowing the criminal petition.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 Cr.P.C. - Suo Motu Power - The trial court cannot suo motu direct the complainant to take steps to mark a document and recall PW.1 after the case is set down for judgment, as the power under Section 311 Cr.P.C. is meant to be exercised only when the court considers it essential for a just decision, not to fill gaps in the prosecution case. (Paras 1-5)
B) Criminal Procedure - Summoning of Documents - Section 91 Cr.P.C. - After Closure of Evidence - The power under Section 91 Cr.P.C. cannot be invoked to summon a document after the closure of evidence and when the matter is reserved for judgment, as it would amount to filling up lacunae in the prosecution case. (Paras 4-5)
C) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Sale Agreement - The sale agreement dated 02.12.2006 was not part of the evidence and the trial court's suo motu direction to mark it after judgment was reserved was held to be an abuse of process, liable to be set aside under Section 482 Cr.P.C. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in allowing the application under Sections 311 and 91 Cr.P.C. to reopen the case and recall PW.1 for further examination after the matter was set down for judgment.
Final Decision
The High Court allowed the criminal petition and set aside the order dated 25.06.2018 passed by the Principal Civil Judge and JMFC, Puttur, in C.C. No.430/2010.
Law Points
- Section 311 Cr.P.C. cannot be invoked suo motu by court to fill gaps in prosecution case
- Section 91 Cr.P.C. cannot be used to summon document after closure of evidence
- power under Section 482 Cr.P.C. to prevent abuse of process
Case Details
2018 LawText (KAR) (08) 13
Criminal Petition No.5489 of 2018
Sri. K. Ravishankar, Sri. A. Ganesh
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Nature of Litigation
Criminal petition under Section 482 Cr.P.C. challenging an order allowing reopening of evidence in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner/accused sought to set aside the order dated 25.06.2018 passed by the Principal Civil Judge and JMFC, Puttur, in C.C. No.430/2010, which allowed the complainant's application under Sections 311 and 91 Cr.P.C. to reopen the case for further examination of PW.1.
Filing Reason
The trial court suo motu directed the complainant to mark a sale agreement dated 02.12.2006 after the case was set down for judgment, and allowed an application to recall PW.1, which the petitioner contended was without jurisdiction and an abuse of process.
Previous Decisions
The trial court had concluded the trial and set the matter down for judgment before passing the impugned order.
Issues
Whether the trial court could suo motu direct the complainant to mark a document and allow recall of PW.1 under Section 311 Cr.P.C. after the case was reserved for judgment.
Whether the power under Section 91 Cr.P.C. could be invoked to summon a document after closure of evidence.
Submissions/Arguments
The petitioner argued that the trial court's order was without jurisdiction and amounted to filling gaps in the prosecution case, as the document was not part of the evidence and the case was already set down for judgment.
The respondent supported the trial court's order, contending that the document was necessary for a just decision.
Ratio Decidendi
The power under Section 311 Cr.P.C. is not intended to be used suo motu by the court to recall witnesses or summon documents after the case is reserved for judgment, especially to fill gaps in the prosecution case. Such exercise of power amounts to an abuse of process and is liable to be set aside under Section 482 Cr.P.C.
Judgment Excerpts
The petitioner has called in question the correctness and legality of the order passed by the Principal Civil Judge and JMFC, Puttur, in C.C.No.430/2010 dated 25.06.2018, whereby the application filed by the respondent herein under Sections 311 and 91 of Cr.P.C, came to be allowed and the case was reopened for the purpose of further examination of PW.1.
After conclusion of the trial and after hearing the parties, the matter was set down for judgment. At that stage, the trial Court having found that one of the document executed between the parties namely, a sale agreement dated 02.12.2006, was necessary for the fair decision in the case, suo motu directed the complainant to take steps to mark the said document.
Procedural History
The respondent/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the petitioner/accused. After trial, the matter was set down for judgment. The trial court suo motu directed the complainant to mark a sale agreement and allowed an application under Sections 311 and 91 Cr.P.C. to reopen the case for further examination of PW.1. The petitioner challenged this order before the High Court under Section 482 Cr.P.C., which allowed the petition and set aside the order.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 311, 91, 482
- Negotiable Instruments Act, 1881: 138
