1. In this application by the private prosecutor in a pending sessions case two main questions have been raised; firstly, whether at this stage i.e. after the conclusion of the evidence, and before the beginning of the arguments the S.J. should be directed by this Court to make a further examination under Section 342, Cr.P.C. Secondly, whether that Court should be directed to admit further prosecution evidence under Section 540, Cr.P.C.
2. The prosecution case is that the accused had committed the offences of cheating, forgery, and using a forged document. The reply is that the complainant himself sent the cheque through his servant for encashment at Allahabad with the endorsement already on it, and that the accused encashed it, and obtained the money; so that there was no cheating, no forgery, and no use of forged document, and at most a civil liability for the amount obtained on encashment. The present application is filed not by the Advocate-General, but by the complainant's own lawyer, who has been permitted to assist the Public Prosecutor. I am told by him that the petitions from the dismissal of which this application arises were filed by the public prosecutor himself. In theory anybody may invite the High Court to act under Section 435/439. Cr.P.C.; usually it will not act except on the invitation of one that is directly affected by the alleged illegality or irregularity. In Sessions cases statutorily Incharge of the public prosecutor normally A.G. or anybody under his authority should move the application; if having given reasonable time he fails to move in the matter then and then alone the private party may do so. Then the High Court will consider whether it is prompted by spite or a genuine grievance. In this case, however, it appears that the Sessions Court, rightly anxious not to hold up the disposal of the case gave only 8 or 9 days; a period which is too short to enable the P.P. to move through the usual channel. To wait say for another fortnight or so, will cause further harassment to the parties. So this application is being considered for what it is worth.
3. The further evidence is sought to be adduced in regard to a defence witness, who has described himself as a servant of the complainant. The latter was asked in cross-examination: 'was it not a fact that he sent the cheque to the accused through a servant requesting; that it might be encashed at Allahabad?', which suggestion the complainant denied. In due course, the accused entered into defence and among the D.Ws., examined, on 24.10.52, one Jadunandan Prasad, who stated that he was a servant of the complainant, and that he it was that brought the cheque with the endorsement from the complainant to a man of the accused. In the suggestion put to the complainant 'a servant' was mentioned without this man being named; whatever this is worth, it would be for the parties to argue and the Sessions Court to consider. Three days after the discharge of this defence witness, the complainant came with a petition that he might be recalled for further cross-examination, to show that at the time the cheque was cashed he, Jadunandan Prasad, was not his servant. This petition was refused by the S.J. About 6 or 7 weeks later on 15.12.52 another petition was filed now requesting that under Section 540. Cr.P.C. the Court should call further evidence from witnesses named in the complainant's affidavit to show that Jadunandan Prasad was not the servant of the complainant, but was actually working under somebody else. This was also refused. Now It is prayed in revision that a direction should be given that the complainant's two petitions should be allowed.
4. A number of rulings have been placed to show that when a Court is satisfied that the farther evidence is 'essential for the Just decision of this case', it is bound to act under this section, and summon, and examine or recall and re-examine the witness, as the case may be, whether the fresh material is going to benefit the prosecution or the defence. The question here is not at all about this obvious and undisputable principles, but about its applicability here. If the complainant believes that the servant's name was purposely omitted in the suggestion to him, he should make that point in the argument, to be borne in mind by the Court in assessing the evidence of the D.W. Jadunandan Prasad. The complainant completed his cross-examination and got the D.W. discharged. He had in fact at least a few days notice before the witness came. If his appearance as D.W. was a surprise, it was open to the complainant to ask the Court to give him a day or two, to enable him to come prepared to cross-examine, and show that he was not the servant at that time. Admittedly the complainant did nothing of that sort. It was only 2 or 3 days after when the complainant began to feel that Jadunandan Prasad had not been fully cross-examined. It was only afterwards that he filed another petition for the Court's calling further evidence to confront this D.W. and disprove his assertion that he was the complainant's servant. It is difficult to understand why the complainant did not put his suggestion in the cross-examination or ask the Court then and there to give him time to bring documents for confronting the witness. Therefore one cannot hold that the recall of this witness, or the summoning of new witnesses, is in these circumstances essential for the ascertainment of the truth. Section 540, Cr.P.C. gives a sort of residuary discretionary power to the Court, but 'essential' evidence should be the purpose, and not the second thoughts of a litigant. Otherwise, there will be no end to argument, as each party can invite the Court to take further evidence to support its revised version or to fill up its gaps in its evidence.
5. There is no doubt that in principle Section 540, Cr.P.C. is meant for both the parties. In practice, however, it is far more likely to be invoked for the benefit of the accused than for the prosecution, because our procedure is that the prosecution evidence begins and ends first, and then the defence begins. To avoid surprise the defence is expected to suggest in the cross-examination the main facts which it intends to prove. If the accused does spring a surprise either in the naming of the witnesses or in the facts they depose to, then the prosecution can do one of the following things. It can point out to the Court that this was not suggested in the cross-examination and is therefore fit to be discounted; it can also request the Court to give a short adjournment for confronting the D.Ws., who come without notice. On the other hand, omission of essential evidence by the defence, can be corrected under Section 540, Cr.P.C., without breaking the order of procedure laid down by the law.
6. Here, the complainant completed his cross-examination and discharged the defence witness; later on he changed his mind and wanted to introduce certain matters which he could have, and, in my opinion, should have put in the cross-examination of the D.W., if necessary after taking a few days' time to bring the papers. Therefore, this new material is not essential for a just decision. On this ground the prayer of the complainant is refused.
7. The other ground is that the examination under Section 342, Cr.P.C. of the accused is incomplete, & that this Court now directs the sessions Court to examine the accused specifically on whether, when he cashed the cheque, he knew that it was forged.
8. Firstly, Section 342, Cr.P.C. is meant to enable the accused to explain the circumstances appealing against him; Out the questions have to be put by the Court itself for this purpose. However, if after the close of the examination by the Court, either party thinks that any crucial ingredient of the charge has been omitted, it may draw the Court's attention to the omission. But it should never forget that this is only to enable the accused to give an explanation; it is not to help the prosecution to complete its evidence; or to trap the accused. In this case, though the accused was examined under Section 342 on 22.10.52, the suggestion for further examination on certain points was suggested by the prosecution, not immediately but nearly two months later. Secondly, the statute fixes no time or stage for this examination, except that it should be done after the prosecution completes its case, so that 'all' these circumstances appearing against the accused may be before him in a complete form; nor is it forbidden to examine the accused more than once, provided that it is directed to the purpose aforesaid, and is not converted into browbeating or an inquisition. If it finds that any crucial point has been omitted and the accused should be afforded an opportunity to explain, the Court may examine him even at this stage, without any direction by this Court. Finally, the so-called omission is apparent rather than actual. There were three charges, of cheating, of forgery, and of knowingly using the forged document. The accused in effect states 'I did use the cheque, but I did not know it was forged and had no reason to think so, the endorsement was already there when I got it through the complainant's servant.' The Sessions Court may or may not accept this answer; but no crucial element out of the triple charge has been omitted.
9. The result is that the application is without substance and is dismissed.