JUDGMENT :

(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to set aside the order passed by the learned XI Metropolitan Magistrate, Saidapet, Chennai dated 18.05.2017 made in Crl.M.P.No.2413 of 2016 in C.C.No.1138 of 2000 and allow this Criminal Original Petition.)

This Criminal Original Petition has been filed to set aside the order, dated 18.05.2017, passed by the XI Metropolitan Magistrate, Saidapet, Chennai, in Crl.M.P.No.2413 of 2016 in C.C.No.1138 of 2000.

2. This petition has been filed challenging the order passed by the trial Court allowing the petition filed under Section 311 Cr.P.C by the prosecution and also directing the prosecution to re-examine all the relevant witnesses connected to the documents enlisted in the petition.

3. On a perusal of the materials, it is seen that final report has been filed against the accused for the offences under Sections 408 and 477-A of the Indian Penal Code for misappropriation of funds, while he was in service. The prosecution has examined as many as 15 witnesses. However, certain documents seized during investigation, though copies were given to other side, were omitted to be marked through the concerned witnesses. Therefore, a petition under Section 311 Cr.P.C. was filed to recall the Investigation Officer (P.W.14) and mark certain documents listed in the petition through him and the same was opposed by the other side, the petitioner herein, on the ground that P.W.14 was examined earlier on 06.11.2007 and similar petition filed under Section 311 Cr.P.C. on 03.09.2015 and the same was dismissed by the learned Magistrate on 03.09.2015. Therefore, it is the contention of the petitioner that, again, the witness P.W.14 cannot be recalled and documents cannot be marked through him. The learned Magistrate, on considering the gravity of the offence and the nature of the documents available on record, allowed the petition and held that, mere re-examining P.W.14 cannot be useful to the prosecution, as the documents relied upon by the prosecution cannot be proved through him, and therefore, directed the prosecution to examine the relevant witnesses and mark the documents which are sought to be brought on record as Exhibits, as against which, the present petition has been filed.

4. The main contention of the learned counsel appearing for the petitioner is that, similar petition for recall has been dismissed as early as on 03.09.2015, and the present petition has been filed after then Magistrate got changed and though the prosecution has restricted the petition to examine only P.W.14 and file the documents through him, the learned Magistrate has in fact directed the prosecution to recall the other relevant witnesses and mark the documents through them.

5. Further, it is the contention of the learned counsel for the petitioner that, having suffered the order in the year 2015, without filing an appeal or challenging the same, the present petition has been filed only to fill the lacuna in the present case, which would cause serious prejudice to the petitioner herein, and hence, the prosecution cannot be permitted to fill up the lacuna. It is his further contention that the learned Magistrate has passed an order beyond the relief sought for in the petition, and hence, the same is liable to be interfered with.

6. Per contra, the learned Government Advocate (Crl. Side), appearing for the respondent, submitted that, what are sought to be exhibited are only the admitted documents, which were already seized during the investigation. He further submitted that, copies were already given to the other side and the documents were already available and extracts in various ledgers have not been marked. Only for that purpose, P.W.14 was sought to be recalled, whereas, the learned Magistrate has taken note of the legal position that P.W.14 is not the author of those documents and the documents cannot be proved through him and hence, directed the prosecution to recall the relevant witnesses, who