CAUSE TITLE:
Siddhachit Roy Vs Rabindra Kumar Mallick
DATE OF ORDER:
6th September 2022
JUDGE(S):
HON’BLE MR. JUSTICE SANGAM KUMAR SAHOO
PARTIES:
Petitioner: SIDDHACHIT ROY
Opposite Party: RABINDRA KUMAR MALLICK
SUBJECT
Petitioner filed the revision petition challenging the order dated 20.12.2021 passed by the Ld. S.D.J.M., Anandapur in 1.C.C. Case No.165 of 2013 in a petition filed by the accused (petitioner herein) for correcting the recording of the petitioner’s evidence.
IMPORTANT PROVISIONS
The Negotiable Instrument Act
Section 138 Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years’, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.
Code of Criminal Procedure
275. Record in warrant-cases.—(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf: Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.
(2) Where the Magistrate causes the evidence to he taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section
Section 276- Record in trial before Court of Session.—(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court, or under his direction and superintendence, by an officer of the Court appointed by him in this behalf.
(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.
(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.
278. Procedure in regard to such evidence when completed.—(1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.
BRIEF FACTS
The accused (petitioner) is facing trial for committing an offence u/s 138 of the N.I Act. During this trial, the petitioner was examined as D.W.1. After cross-examination, the evidence was read and explained to the petitioner after which he signed the deposition sheet on 08.12.2021. The counsel for the petitioner filed a petition alleging that the answers of the petitioner to some of the questions have been wrongly recorded. Hence, he prayed for the correction in recording of the evidence.
The complainant (before the trial court) filed objections to the said petition. Upon hearing both the parties, the trial court held that after the recording of the evidence, the same was read and explained to the witness. He found it true and correct and thereafter affixed his signatures. Hence, the prayer to make changes cannot be done without bringing the petitioner to the dock. The petition was dismissed.
Present revision petition was filed.
ARGUMENTS BY THE PETITIONER
The counsel for the petitioner contended that after receiving the certified copy of the deposition, it was noticed that the wrong recording has been made by the court, and immediately, the petition was filed to make it correct.
It was submitted that though the petitioner is a graduate and it was his duty to immediately point out the same to the Ld. Trial court while putting his signatures, but he could not verify the evidence properly during that time. It was submitted that due to his latches, he should not be deprived of the opportunity to bring it to the notice of the court as wrongly recorded evidence would have far-reaching consequences.
ANALYSIS BY THE COURT
- The hon’ble court analyzed relevant provisions of the Criminal Procedure Code. Section 278 deals with the procedure with regard to evidence when it is completed.
- It states that evidence of each witness is taken under section 275 or 276 is completed, it shall be read over to him in presence of the accused if personally present or his pleader and shall be corrected if necessary and if the witness denies the correctness of any part, the magistrate or the presiding officer as the case may be instead of correcting the evidence may make a memorandum thereon and add remarks if any.
- The court observed that sub-section 3 of section 278 of the code is not attracted in the present case as the petitioner is a graduate and he gave his evidence affidavit in English and his deposition was also recorded in English and he has put his signature on each page of the deposition sheet.
- The court observed that all the courts whether civil or criminal are under an obligation to read over the deposition to witness before he is called for affixing his signatures. The object of this principle is to obtain an accurate record from the witness along with an opportunity to correct the words the magistrate has noted down.
- Under this section, the witness cannot be permitted to withdraw from his statement in the name of correction.
- If it is endorsed in the certificate of the Magistrate that the deposition was read out to the witness and that the witness admitted it to be correct, the Court is bound to accept this as correct under section 80 of the Evidence Act until it is proved to be untrue.
CONCLUSION
The court rejected the argument of the petitioner that everything was done in a hurried manner and it could not be ascertained if the deposition was correct cannot be accepted. The correction sought in evidence is completely different from the evidence originally recorded. Hence, it would be risky to allow further evidence of the petitioner herein and/or allow the correction. However, if there is a new fact that has been left out, the counsel can file an application to recall the witness to the extent of those new facts only.
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