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2010 Supreme(Cal) 1185
High Court of Judicature at Calcutta
SYAMAL KANTI CHAKRABARTI
Lakhi Prasad Shaw
Versus
The State of West Bengal & Another
C.R.R. 1428 of 2009
Decided On : 15-09-2010
For the Petitioner:Sandipan Ganguly, Mukesh Kr. Gupta, Advocates.
For the Respondents:R2, Tirthankar Ghosh, Ranajit Roy, Advocates.
The power to summon witnesses under Section 311 CrPC is discretionary and should be exercised judiciously.
Headnote:
SECTION 311 CRPC - EXAMINATION OF WITNESSES - SECTION 138 NI ACT - REJECTION OF APPLICATION - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT: The court examined the provisions of Section 311 of the Code of Criminal Procedure (CrPC), which empowers the court to summon any person as a witness or examine any person present in court, even though such person was not summoned to give evidence. The court also considered the provisions of Section 138 of the Negotiable Instruments Act, which deals with the offence of dishonour of cheques. KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION: The court interpreted Section 311 CrPC to hold that the power to summon witnesses under this provision is discretionary and should be exercised judiciously. The court noted that the accused had already been given an opportunity to examine himself as a witness and that the revisional court had rejected his prayer to examine other witnesses. The court held that the accused could not renew the same prayer under Section 311 CrPC to frustrate the findings of the revisional court. The court also held that the accused had not raised any dispute regarding his signature on the dishonoured cheque during his examination under Section 313 CrPC and that the certificate issued by the District Transport Officer, Nagaland, was a public document that did not require to be proved by government officials.
Fact of the Case:
The accused, in a case under Section 138 of the Negotiable Instruments Act, filed an application under Section 311 CrPC after the closing of defence evidence, seeking to examine four defence witnesses. The trial court rejected the application, holding that the accused had already been given an opportunity to examine himself as a witness and that the revisional court had rejected his prayer to examine other witnesses.
Finding of the Court:
The court held that the accused could not renew the same prayer under Section 311 CrPC to frustrate the findings of the revisional court. The court also held that the accused had not raised any dispute regarding his signature on the dishonoured cheque during his examination under Section 313 CrPC and that the certificate issued by the District Transport Officer, Nagaland, was a public document that did not require to be proved by government officials.
Issues: Whether the accused could renew the same prayer under Section 311 CrPC to frustrate the findings of the revisional court.
Ratio Decidendi: The court held that the power to summon witnesses under Section 311 CrPC is discretionary and should be exercised judiciously. The court noted that the accused had already been given an opportunity to examine himself as a witness and that the revisional court had rejected his prayer to examine other witnesses. The court held that the accused could not renew the same prayer under Section 311 CrPC to frustrate the findings of the revisional court.
Final Decision: The court dismissed the revisional application and directed the trial court to proceed with the case as per law and to dispose of the same within a period of three months from the date of communication of the order.
SYAMAL KANTI CHAKRABARTI, J.
1. The present revisional application is directed against order dated 16.04.2009 passed by the Learned Metropolitan Magistrate, 9th Court, Calcutta in Case No. C-3575 of 2001 under Section 138 of the Negotiable Instruments Act rejecting prayer of the accused petitioner made under Section 311 Cr.P.C. for examination of 4 defence witnesses for just decision of the case.
2. Learned lawyer for the petitioner submits that in his application under Section 311 Cr.P.C. filed after closing of defence evidence on 31.03.2009 while the case was fixed for argument on 08.04.2009, the petitioner made a prayer under Section 311 Cr.P.C. for allowing him to examine following 4 witnesses:-
i) Mr. Shamim, the person who had taken blank cheque leaf from the petitioner:
ii) Witnesses to test the authenticity of the purported certificate by the Motor Vehicles Department District Transport Office, Mukukchung, Nagaland;
iii) The Deutche Bank;
iv) Government Handwriting Expert to examine the signature on impugned cheque and purported Hire Purchase Agreement.
3. While considering such prayer the Learned Trial Court by order dated 16.04.2009 has rejected the prayer on the following grounds:-
a) In Criminal Revision No. 126 of 2007 the accused petitioner was given last opportunity to adduce himself as DW;
b) As per findings of the Learned Chief Judge, City Sessions Court in the said Criminal Revision No. 126 of 2007 the accused is not entitled to get any further opportunity to tender other witness as expert himself;
c) As regards examination of handwriting expert such prayer was earlier rejected by the Learned Trial Court under order dated 23.08.2007 and subsequently confirmed by the order of the Learned Chief Judge, City Sessions Court, in the said revisional application and as such the same has reached its finality and cannot be reopened;
d) So far as the prayer for examining Mr. Shamim is concerned, the Learned Trial Court is of the view that as per available evidence on record and findings made by the Learned Chief Judge, City Sessions Court made in the said revisional application there is no scope for reconsideration of the same prayer by the Court below;
e) So far as two other points are concerned, i.e., witness to test the authenticity of certificate issued by the Motor Vehicle Department, Nagaland and examination by officials of the Deutche Bank, the Learned Trial Court is of the view that the same is not relevant for the purpose of the case; AND
f) The petition has been filed only to drag the case since the claim of the accused has already been decided by the revisional Court.
4. Admitted position of this case is that the accused petitioner has not moved the higher forum against the findings of the Learned Chief Judge, City Sessions Court in Criminal Revision No. 126 of 2007. This fact has been admitted in paragraph 5 of the revisional application. If the order passed by the revisional Court is accepted and complied with by the accused petitioner he cannot claim the same opportunity rejected by the revisional Court renewing same prayer under Section 311 Cr.P.C.
5. Learned lawyer for the opposite party no. 2 has contended that the findings of the revisional Court has reached its finality and the provisions laid down in Section 311 Cr.P.C. though can be claimed at any stage of the proceedings but should never be claimed to frustrate the findings of the revisional Court which has reached its finality.
6. There is also no denial that by order dated 23.08.2007 the Learned Trial Judge has rejected the prayer of the accused for sending his signature to the handwriting expert for its verification which has been disputed. But the same was rejected and confirmed by the Learned Chief Judge, City Sessions Court. Therefore, on grounds of prejudice and denial of fair trial the findings of the Learned Revisional Court which has reached its finality cannot be reopened under Section 311 Cr.P.C. as claimed by the p
