HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION Nos.4000, 4002, 4005,4007,4009 and 4014 of 2008 COMMON ORDER: The petitioner in all the cases is one and the same. He is the accused in as many as six cases. The 1st respondent in each of these criminal petitions laid complaints against the petitioner that the petitioner is guilty of the offence punishable u/Sec.138 of the Negotiable Instruments Act. The present petition is laid by the accused questioning the order of the learned trial Judge passed on 18.6.2008. The defacto complainant in each of the cases was examined as P.W.1. He was also cross-examined. After his cross-examination and after completion of his evidence, the complainant came forward with a petition u/Sec.311 Cr.P.C. to receive two documents as additional evidence. A copy of one of these documents was lodged on record as Ex.P8. The other document is entirely a new document. 2. The learned Judicial First Class Magistrate allowed the application filed by the defacto complainant and directed that the documents produced be received in the evidence and that PW1 be recalled for further examination. Assailing the same, the present petitions are laid by the accused. 3. Sri C.Aravind, learned counsel representing the accused contended that the second document namely, the reconstitution of partnership deed dt.1.4.2002 has not been referred to in the complaint and also in the evidence of PW1 and that the same is brought up by the defacto complainant to fill up the gaps in his evidence, which were exposed in the cross-examination of PW.1 He also urged that there was no prima-facie evidence to show that the original of Ex.P8 which is the partnership deed was held up with the Income Tax Department and that the defacto complainant who failed to explain why the original partnership deed was not exhibited initially, is not entitled to do so at this stage. 4. The accused, who is the petitioner herein in other words is seeking for a direction to restrain the complainant from bringing two documents on record with the necessary corollary with PW1 need not be recalled for further examination to exhibit these two documents. The basis of the contention of the learned counsel for the accused is that the documents were not referred to in the complaint and in the evidence of P.W.1 and that no reason was assigned why these documents could not be filed at the time of chief examination of PW.1. 5. When the 1st respondent seeks to recall PW1 for exhibiting these two documents, I am afraid that the court cannot stop the defacto complaint from producing the said two documents. Indeed, the evidentiary value of these two documents is an entirely different issue. Whether these two documents are concocting or otherwise brought up as they were not referred to in the complaint and the evidence of P.W.1 are questions which can be gone into perhaps at the time the document are tendered in evidence and definitely at the time of the appreciation of their evidentiary value and at the time of the disposal of the main case. At this stage, I am afraid that the petitioner cannot resist the attempt of the 1st respondent in bringing these two documents on record and exhibiting them through the evidence of P.W.1 6. Sri N.V.Sumanth, learned counsel representing the 1st respondent placed reliance upon Rajendra Prasad V. Narcotic Cell[1]. The Supreme Court observed in that case that non-marking of the document by oversight or by mistake during the course of evidence could not be considered as a lacuna in the prosecution case. I am afraid that I cannot give any finding at this stage that the failure on the part of the defacto complainant in exhibiting the two documents was on account of oversight. It is for the trial court to decide this question which is a question of fact. 7. So far as the present petitions are concerned, the limited question is whether it is justified for the trial court to recall PW1 so as to enable him to exhibit these documents. Where the accused has an opportunity to cross-examine PW1 when PW1 exhibits the two proposed documents, I consider that the order passed by the trial court is justified and do not need any interference. Hence, these criminal petitions are found to be devoid of merits and are liable to be dismissed. 8. In the result, these criminal petitions are dismissed. However, it is made clear that it is open for the petitioner to raise the question about the admissibility, the truth and the validity of the two documents at the time when these documents are tended in evidence through the evidence of PW1 and also at the time of the disposal of the main cases. __________________________ JUSTICE K.G.SHANKAR Dt. 31-03-2011 Mjl/* [1] (1999) 6 Supreme Court Cases 110