ORDER
M.R. Hariharan Nair, J.
1. One of the questions posed in this revision is whether Section 311 of the Cr.P.C. can be invoked in the case of a trial in a summons case.
2. The revision petitioner is the second accused in C.C. No. 162 of 1999 of the Judicial First Class Magistrate’s Court-I, Ernakulam and the first accused is the company, whom he represented. The first respondent herein filed the said case alleging that the two accused borrowed a sum of Rs. 4 Lakhs from the complainant agreeing to repay the same on demand and that in due course Ext. P1 cheque was issued to cover the debt, which on presentment in bank, was dishonoured for want of funds. The trial court accepted the complainant’s case and convicted both the accused. The present petitioner was sentenced to undergo S.I. for one year and to pay a fine of Rs. 5,000/- (in default S.I. for three months). On appeal by way of Crl.A. No. 329 of 2000, the learned Sessions Judge, Ernakulam confirmed the conviction, but modified the sentence by reducing the substantive punishment from one year to one month, but mulcting the accused with liability for payment of compensation of Rs. 4,10,000/-. If compensation was realised, Rs. 4 lakhs out of the same would go to the complainant. It is aggrieved by this direction that the petitioner has come up before this Court.
3. Learned counsel for the petitioner urged two points. According to him, this is a summons case governed by Section 274 of the Cr.P.C., according to which, the substance of the evidence alone has to be recorded by the Magistrate. In the instant case, CMP No. 2192 of 2000 was filed before the trial court seeking to correct an alleged mistake in the evidence recorded by the court with regard to PW1. It is contended that the grant of that petition and recall of PW1 invoking power under Section 311 of the Cr.P.C. is unjustified. Secondly, it is argued that the grant of compensation by the learned Sessions Judge was illegal in so far as the liability to pay compensation has not been apportioned among the two accused and also because the financial capacity of the accused to pay the compensation has not been taken into account.
4. I have heard the learned counsel for the respondent also, according to whom, the trial court has wide power under Section 311 of the Cr.P.C. and the recall of PW1 to correct an obvious error is well justified.
5. A question was posed to PW1 as to the date on which the alleged borrowal of Rs. 4 lakhs took place. The answer was recorded as in April, 1977. That was on 5.2.2000. On 23.2.2000 CMP No. 2192 of 2000 was filed wherein it was alleged by the complainant that on a perusal of the certified copy of the deposition which was issued only on 22.2.2000 it was noticed that the answer given by PW1 with regard to the date of borrowal was wrongly recorded as 1977 April, whereas the actual date given by PW1 in court was April, 1997. The prayer therefore was that evidence be re-opened. It was based on these averments that the court thought it fit to invoke its power under Section 311 of the Cr.P.C. and to recall and examine the witness further. In such examination made on 15.3.2000 PW1 clarified that he had mentioned the year of borrowal as 1997 even on the date of his earlier examination. In cross examination by the defence it was suggested to him that the earlier answer was with reference to the year 1977 itself and that was denied by the witness.
6. It is true that there is no specific mention in Section 274 of the Cr.P.C. directing the Court to read over to the witness what has been recorded by him. That does not at all absolve the Court of the liability to read over to the witness the substance of the evidence recorded by him. It is only when what is recorded is read over to the witness that he would be able to point out defects, If any, in the deposition and in that perspective whether it is a summons case or warrant case and irrespective of whether what is recorded is the verbatim reproduction of the deposition tendered by the witness are only the substance of the evidence, the Court would always be bound to read over to the witness what has been recorded, so that the witness would have an opportunity to point out the defects, if any. This is of importance in a case of the present nature, where the figures will have wide implications.
7. The contention that recall of the witness is unjustified is built upon Section 278 of the Cr.P.C., which provides that in the case of warrant cases evidence of each witness should be read over to the witness in the presence of the accused and if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate, instead of correcting the evidence, may make a memorandum thereof and shall add such remarks as he thinks necessary. I do not think that the aforesaid provision would make any difference with regard to the applicability of Section 311 of the Cr.P.C., which provides as follows:-
“Section 311 : Power to summon material witness, or examine person present :
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
As is clear from the section itself the discretion available with the Court in the matter is very wide and the power has to be exercised with due caution. The overwhelming guideline in the matter would be the dispensation of justice if for imparting justice to the parties, whether on motion by the accused or by the prosecution, or even suo moto recall of a witness or summoning of additional witness is found necessary, the Court will always have the power to do that notwithstanding the objections raised by the parties. It is the duty of the Court to summon and examine any person whose evidence the court considers essential for arriving a just decision of the case. This power the Court can always exercise irrespective of whether it is a sessions case, warrant case or summons case and no party can be heard to contend that such examination would be against his interests and therefore objectionable.
8. As far as the present case is concerned, the date of borrowal is not mentioned in the complaint; nor was it divulged in chief examination. It was only in cross examination that the question was specifically posed to him. What was recorded by the Court was certainly 1977 April. But then in answer to the just previous question the witness had stated that the accused was known to him from 1995 onwards. Such being the case, there was no possibility at all for the witness giving an answer that the transaction took place as early as in 1977 ie., 18 years before the accused was even known to him. The complainant pointed out the defect in the recording of the examination as soon as he got a certified copy. It was essential that the Court gave him an opportunity to clarify the position lest fatal result for his case would have followed. It is in this perspective that CMP No. 2912 of 2000 was filed. The order of the Court dated 13.3.2000 passed thereon shows that the court was also convinced of the need for recalling the witness. In further examination made after such recall, though in answer to a leading question the witness clarified that the transaction was in 1997 and that he had stated only that way even earlier. In further cross examination he clarified the position further.
9. Much was argued about the way in which the answer was elicited; allegedly through a leading question. It is Section 141 of the Indian Evidence Act that deals with leading questions. According to this section any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. According to Section 143 such questions are admissible in cross examination. Section 142, however, provides that leading questions must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. There is also a further clause that the Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. What is evident from the aforesaid provisions is that there is no blanket bar that leading questions should not be asked under any circumstance by the party calling the witness. The embargo is only that without the permission of the Court it should not be put. It is also clear from the section that by way of introduction and on aspects sufficiently proved, such questions might be asked. As far as the present case is concerned, the mistake in the matter was clearly specified in the petition. At the time when the party was recalled, everyone knew that recalling of the witness is to speak about the aspect of error. It is in this perspective that the question put to the witness has to be seen. It is also seen from a perusal of the evidence that the Court permitted the question in the absence of any objection from the other side with regard to that question. Viewed from this perspective I do not find it proper to eschew the evidence tendered by the witness merely because some sort of leading question was put to him when he was recalled.
10. After the recalling of the witness the position is clear that the transaction took place in the year 1997. It is to be mentioned here that the accused at no time before the particular stage, had a case that the transaction was in 1977 and not in 1997. The filing of the complaint was preceded by a notice intimating the dishonour of the cheque and in Ext. P7 reply the stand taken is that the complainant is a total stranger. In other words, the issuance of the cheque itself was disputed and there was no contention at all taken therein that the transaction was in 1977 and that the cheque was not issued within the period of validity of the debt.
11. In these circumstances I find absolutely no illegality, irregularity or impropriety in the procedure followed by the trial court in the matter of considering the evidence adduced in the case.
12. This case highlights the need for reading out the deposition recorded by the Court to the witness concerned. It is unfortunate that inspite of this Court’s directions contained in several judgments and specific circular highlighting the need for reading out depositions before they are got signed by witnesses, some of the trial courts are not following this prescribed procedure. Even at the risk of repetition I would like to highlight the imperative need for following the said directive, which is also contained in Section 278 of the Cr.P.C. and it is expected that all Subordinate Courts would be getting the signature of the witnesses in depositions only after the evidence (or substance of the evidence, as the case may be) recorded by it is read over to the witnesses in such a way that the witnesses would be able to understand the scope of the evidence and also point out mistakes if any.
13. Now about the propriety of the compensation directed in this case. Section 357(3) of the Cr.P.C. provides as follows:-
“Section 357(3) : When a Court imposes asentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced”.
Section 138 of the Negotiable Instruments Act provides for punishment of imprisonment for a term which may extend to one year or fine which may extend to twice the amount of the cheque or both. Section 141 of the Act provides that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In the present case the revision petitioner was the person, who, at the time when the offence was committed, was in charge of and was responsible for the affairs of the first accused company and he is therefore liable to be punished accordingly.
14. Eventhough a fine of Rs. 5,000/- was imposed by the trial court in addition to the substantive term of S.I. for one year, the learned Sessions Judge, in appeal, modified the same and cancelled the punishment of fine. Such being the case, it is Section 357(3) of the Cr.P.C. quoted above that applies and the Court has power to grant by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act, for which the accused person is sentenced. The Court was therefore well within power in directing payment of compensation to the complainant.
15. The decision in Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127) lays down the principles to be borne in mind while directing compensation. In paragraph 11 of the judgment the Court held as follows:
“The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the fads and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each.accused. Reasonable period for payment of compensation, if necessary in instalments, may also be given. The Court may enforce the order by imposing sentence in default”.
The Court has therefore to apply its mind with regard to the reasonableness of the compensation with reference to the nature of the crime, justness of the claim of the victim and the ability of the accused to pay. As far as the present case is concerned, the amount borrowed was to the tune of Rs. 4 lakhs and the liability was incurred by a company. The ability to repay the same has therefore to be inferred. There is no question of apportioning the amount between the two accused in view of Section 141, about which 1 have already referred to and also because of the fact that the first accused is a company. In these circumstances the compensation directed by the learned Sessions Judge is also legal and proper.
In the circumstances the revision fails and it is accordingly dismissed.