The Hon’ble Delhi High Court opined that Section 391 of Cr.P.C. cannot be used to delay the proceedings or to cause inconvenience to the other party as that also amounts to a miscarriage of justice by delaying the proceedings under Section 138 NI Act, and abuse of process of law, especially in cases where the complainant has already been cross-examined in detail and no grounds are shown to recall the witness.
Brief Facts:
The Accused had approached and requested the Complainant for some financial assistance in the form of a friendly loan. The Complainant loaned a sum of Rs.1,00,000/-. In discharge thereof, the Accused issued a post-dated cheque. The said cheque was returned as dishonoured with the remarks "Funds Insufficient".
Accordingly, the present complaint under Section 138 read with Section 142 of the NI Act was filed by the Complainant. The Accused (Petitioner) had then filed an application under Section 311 of the Cr.P.C. seeking recall of the Complainant for cross-examination, which was dismissed.
Contentions of the Petitioner:
It was submitted that the Appellate Court erred in holding that since he was an Advocate himself, he ought to have known the procedure and practice to be adopted. It was further argued that the reason was not to fulfil any lacuna in the trial but to corroborate the defence with documentary evidence.
Observations of the Court:
It was noted that application under Section 311 of Cr.P.C. for cross-examination of respondent No. 2 was filed after a delay of more than three years and five months.
The Court observed that the Petitioner had extensively questioned the complainant in his cross-examination, and hence there was no ground to further examine the complainant.
It was opined that Section 391 of Cr.P.C. cannot be used to delay the proceedings or to cause inconvenience to the other party as that also amounts to a miscarriage of justice by delaying the proceedings under Section 138 NI Act, and abuse of process of law, especially in cases where the complainant has already been cross-examined in detail and no grounds are shown to recall the witness.
The Decision of the Court:
The Hon’ble Delhi High Court, accordingly dismissed the petition.
Case Title: Rajesh Marwah v State & Anr.
Coram: Hon’ble Justice Swarana Kanta Sharma
Case no.: CRL.M.C. 5428/2023 & CRL.M.A. 20570/2023
Advocate for the Petitioner: Adv. Mr. Atul Sahi
Advocate for the Respondents: Advs. Mr. Naresh Kumar Chahar and Mr. Raghav Sharma
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