Ms. R. Mala, J.—The petitioner, who is the respondent/accused in C.M.P.No.3078 of 2014 in STC.No.971 of 2011 on the file of the learned Judicial Magistrate, Fast Track Court at Magistrate Level, Karur, has come forward with this petition challenging the impugned order passed on 30.06.2015 stating that the he is facing criminal case under Section 138 of Negotiable Instruments Act.
2. The case of the petitioner is that the respondent/complainant has filed an application in C.M.P.No.3078 of 2014 in S.T.C. No. 971 of 2011 seeking to re-open the complainant side evidence and to recall P.W.1 to mark the documents mentioned therein and also the evidence adduced by the petitioner/accused in a civil suit in O.S. No. 703 of 2007 on the file of the Principal District Munsif Court, Karur and the trial Court, after hearing both sides, allowed the same, as against which, the petitioner has come forward with this Criminal Original Petition.
3. This Court has to decide the matter on merits as to whether there is any delay in filing the said application and whether the deposition of the petitioner/accused in a civil suit, shall not be marked as evidence by recalling the evidence of PW1.
4. To substantiate his arguments, he relied upon the following decisions:
(i) Mitthulal and Another v. The State of Madhya Pradesh reported in (1975) 3 SCC 529
(ii) K. Ahmed Alli Sab, Deceased (by L.Rs) and others v. Desai Abdul Gani Desai reported in AIR 2005 Andhra Pradesh 374.
5. It is appropriate to consider the facts of the case. It is pertinent to note that the respondent herein has filed a complaint under Section 138 of Negotiable Instruments Act, stating that the petitioner herein, during the course of the business transaction, borrowed the loan and in order to discharge the amount due, he issued the cheques for a sum of Rs. 3,15,300/- and when they were presented for encashment, they were returned as "insufficient funds". After issuing the statutory notice, the respondent herein filed the complaint.
6. When the matter was posted for arguments, the learned counsel appearing for the petitioner submitted that the application filed by the respondent/complainant seeking to recall the evidence of P.W.1 for marking the evidence of the petitioner/accused adduced in a civil suit, viz., the written statement filed by the petitioner and also Ex.B4 marked in the civil suit, is not maintainable.
7. According to the petitioner, he is the co-defendant in the said civil suit along with complainant/petitioner herein and since there is a dispute between both the parties, the deposition of the petitioner/accused could not be marked by the respondent/complainant and the said fact has not been considered by the trial Court and hence, prayed for setting aside the order passed by the trial Court.
8. Since the written statement filed in the said civil suit and Ex.B4 marked therein, are public documents, the respondent is entitled to recall the evidence of P.W.1 to mark the additional documents.
9. Now, the dispute is only as to whether the deposition of the petitioner/accused could be marked through PW.1. It is pertinent to note that the petitioner relied upon the decision of Mitthulal and Another v. The State of Madhya Pradesh reported in (1975) 3 SCC 529 and submitted that the deposition of a criminal case could not be taken in another case. The facts deposed in the cross-examination of the petitioner are relating to the present civil suit and not in the other suit. It is appropriate to incorporate hereunder the para ''4'' of the above said decision:
"4. It is apparent from a bare reading of the judgment of the High Court that it suffers from a serious infirmity and it is impossible to sustain it. The High Court has based its conclusion not only on the evidence recorded in the case against the appellants and the four other accused but also taken into account the evidence recorded in the cross case against Ganpat, Rajdhar and others. This is what the High Court has stated in so many terms in paragraph 7 of the judgment :
"The two cases Cr.A.No. 188 and Cr. A. 202 of 1968 have to be read together and then alone the real position can be understood. The witnesses in one case are undoubtedly accused in the other It is by going through the evidence in both the cases that we can come to the real story The Nandwanshis claim that the fight took place in the field belonging to them and, therefore, they had a right of private defence, whereas the other party similarly claim that the fight took place in their field and they had a right of private defence. Curiously enough both claim that the origin of the trouble is the grazing of the cattle If we read with both the cases together with the statement of the accused in one case and the version of the witnesses of the prosecution witnesses in the other along with the statement of the accused and the version of the prosecution witnesses in the other we can come to the true story. Independently considered a particular case, it creates some confusion. If both the cases are read together there leaves no room for doubt that the incident happened in the following manner.... After going through the evidence of both the cases I have come to the conclusion that the conviction in both the case are in order.
This was clearly impermissible to the High Court. It is difficulty to comprehend as to how the High Court could decide the appeal before it by taking into accounts evidence recorded in another case, even though it might be what is loosely called a cross case. It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible it is doubtful whether the evidence in one criminal case can be treated as evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross case against Ganpat and Rajdhar as evidence in the case against them The High Court was, therefore, clearly in error in taking into consideration the evidence recorded in the cross case against Ganpat and Rajdhar. The High Court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not to have allowed itself to be influenced by the evidence recorded in the cross-case against Ganpat and Rajdar. It is regrettable that the High Court should have fallen into such an obvious error. The judgment of the High Court must, therefore, be set aside and we must proceed to consider whether, on the evidence recorded in the present case without locking into the evidence recorded in other cross-case the conviction and sentence recorded against the appellants can be sustained."
10. I am of the opinion, the above said decision is not applicable to the case on hand. In the said citation, the accused was charged for the offences under Sections 325, 323 r/w 34 and Section 99 I.P.C.
11. But in the case on hand as a result of money transaction to discharge the debt, the cheque has been issued which was returned as "insufficient funds." Furthermore, in the previous suit, both the petitioner and the respondent are co-defendants.
12. The learned Counsel appearing for the petitioner relied upon the paragraph Nos. 28 to 30 in the matter of K. Ahmed Alli Sab, Deceased (by L.Rs) and others v. Desai Abdul Gani Desai reported in AIR 2005 Andhra Pradesh 374, which read thus:
"28. As per Section 33 of the Indian Evidence Act, the evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;
Provided --
That the proceeding was between the same parties or their representatives-in-interest;
That the adverse party in the first proceeding had the right and opportunity to cross-examine;
That the questions in issue were substantially the same in the first as in the second proceeding.
29. Admittedly, the proceedings in the present case are different from that of the earlier suit. No doubt, the earlier suit was also filed based on the similar agreement which was found to be forged and concocted one and the depositions in the said suit cannot be received as evidence in this case, in view of Section 33 of the Indian Evidence Act.
30. As per Section 33 of the Indian Evidence Act, no doubt the evidence of the defendants is relevant in the subsequent judicial proceeding in some circumstances that when the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense."
13. But, it is appropriate to refer to Section 33 of the Indian Evidence Act, wherein a proviso has been given to the effect that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine and that the questions in issue were substantially the same in the first as in the second proceeding.
14. Considering the provisions of Section 33 of the Indian Evidence Act and also taking into consideration the fact that the petitioner as well as the respondent are co-defendants in the previous civil case, I am of the view that the deposition in the previous case, can be used for corroboration and contradiction in the evidence let in before the trial Court and hence, this Court finds no reason to interfere with the order passed by the trial Court.
15. In the result, this Criminal Original Petition is dismissed.
