IMPORTANT POINT
Entire deposition of a witness in an earlier proceeding cannot be marked in a subsequent proceeding

ORDER

R. Raghunandan Rao, J.—O.S.No.5 of 2015 has been filed by the respondent in the present Civil Revision Petition against the petitioner, for recovery of an amount of Rs.86,363/- along with interest on the principal sum of Rs.50,000/-, before the Principal Junior Civil Judge, Gudivada. It appears that a Criminal Case was also filed by the respondent herein, against the petitioner in C.C.No.151 of 2013, in the Court of the Additional Judicial Magistrate of First Class, Gudivada. After the evidence of P.Ws.1 and 2 had been recorded, P.W.1 was recalled and further cross examined on 07.11.2016 as per the orders in I.A.No.324 of 2016. Thereafter, I.A.No.106 of 2017 was again filed by the petitioner/defendant, for recalling P.Ws.1 and 2, to cross examine these witnesses in relation to the deposition given by them in C.C.No.151 of 2013 on the file of the Additional Judicial Magistrate of First Class, Gudivada. The clam of the petitioner was that there were variations between the statements made by these witnesses in C.C.No.151 of 2013, and the deposition of these witnesses in O.S.No.5 of 2015. For that purpose, the petitioner sought to recall P.Ws.1 and 2, to mark their depositions as exhibits. This application was contested by the respondent.

2. After hearing both sides, the trial Judge dismissed this application, by an order dated 29.06.2017, holding that Sections 32 and 33 of the Evidence Act does not permit the marking of the entire evidence of an earlier proceeding while the witness is alive and available and secondly, on the ground that the petitioner had even earlier filed I.A.No.324 of 2016, for recalling and further cross examination of P.W.1 which was allowed and P.W.1 was recalled and further cross examined without being confronted by the deposition which is now sought to be marked. The trial Judge observed that the petitioner, who was already in possession of the deposition which he now seeks to mark, even by the time P.W.1 had been recalled for cross examination, had chosen not to cross examine P.W.1 on this issue. After observing this fact, the trial Judge had held that the petitioner had been given adequate opportunity and cannot seek further opportunities to make good his case.

3. Aggrieved by the said order of rejection, the present revision petition has been filed.

4. Heard Sri Y. Ramatirtha, learned counsel for the petitioner and Sri P.S.P. Suresh Kumar, learned counsel for the respondent.

5. The deposition which the petitioner seeks to mark by recalling P.Ws.1 and 2 was in the position of the petitioner and available when P.W.1 was recalled for cross examination. Having given up that opportunity to confront P.W.1 with the said deposition, the petitioner cannot complain of a lack of opportunity to make out his case. Apart from this, there remains a question of whether the entire deposition of a witness in an earlier proceeding can be marked in a subsequent proceeding. A learned Single Judge of this Court in Telanakula Kasi Viswanadham vs. Pokuri Maruthi Prasad, 2019 (4) ALT 223 (AP), after considering the ambit of Section 17, 21, 33 and 145 of the Indian Evidence Act had held as follows:

In view of the above precedential guidance, it is clear that as it is the case of the revision petitioner/respondent in the instant OP that the witness (PW.1) made a statement in his present deposition contrary to contain admissions, which he made in the deposition given by him in the former judicial proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination; and, on such confrontation, if he admits the confronted portions or statements in his previous deposition, such admissions can be recorded by the trial Court in his previous deposition; however, if, on such confrontation, he denies the previous statements in his previous/former deposition, which are contrary to his statements in his present deposition, then the confronted portions only of the previous deposition gi