RULE. Rule made returnable forthwith. Heard finally with
the consent of learned Counsel for the parties.
2. By this petition, the petitioner has challenged the order
Exhibit-75 in S.C.C. No.855/2015 dated 26/06/2024. The present
under Section 138 of the Negotiable Instrument Act, 1881. The facts
A] The petitioner is the partner of the firm M/s Shreekrushna
Ginning and Pressing, which deals with the business of sale and
purchase of cotton and also holds license for the same. It is alleged by
the complainant that the petitioner had not paid the bazar and
supervision fees on the purchase of cotton and grains from the
cultivators. It is further alleged by the respondent that, in view of
discharging his liability to the aforesaid fees, the accused issued cheques
bearing Nos.014988 and 014992 dated 10/05/2015 and 20/05/2015
amounting to Rs.5,00,000/- and Rs.3,00,000/- respectively in the name
of the complainant. The said cheques were deposited by the complainant
but the same were dishonoured with the endorsement that "Exceeds
Arrangement", and therefore, after following the due compliance which
is required, the complainant constrained to file the complaint application
which is bearing S.C.C. No.855/2015, under the provisions of Negotiable
Instruments Act, 1881.
B] After filing of the complaint, the process was issued against
the present petitioner. The complainant has adduced the evidence.
During evidence, the accused has filed an application below Exhibit 70
requesting the Court to call the witness by invoking Section 311 of
Cr.P.C. contending that the evidence of the Bank Manager is required for
the just decision of the case. But the said application Exhibit 70 is
rejected by the Judicial Magistrate First Class, Seloo.
3. Being aggrieved with the same, the petitioner preferred the
Criminal Writ Petition No.89 of 2024 which was subsequently withdrawn
by the present petitioner. Thereafter, the final submissions were made by
both the sides and thereafter, the application was filed by the
complainant to summon the witness only on the ground that the
complainant wants to examine the witness of Bank of India to prove the
reason of dishonour of cheque. This fact came to the knowledge of the
complainant at the time of the final argument and it is mentioned that it
is necessary to call the witness, and therefore, the learned Magistrate
shall grant the permission and summons be issued to the witnesses.
4. Though said application is strongly opposed by the accused,
the learned Magistrate has allowed the application by observing that the
examination of the said witness is required for the just decision of the
case. Being aggrieved and dissatisfied with the same, present petition is
preferred by the petitioner on the ground that the application is filed at a
belated stage when the petitioner has preferred an application under
Section 311 of Cr.P.C. Said application was strongly opposed by the
complainant and now he is seeking the same relief to examine the said
witness only to fill up the lacuna, and therefore, the order passed by the
Magistrate is illegal and erroneous and liable to be quashed and set
aside.
5. Learned Counsel for the petitioner reiterated the said
contention and submitted that the object of Section 311 of Cr.P.C. is that
the witness can be examined at any stage of trial when it is essential for
the just decision of the case. The present petitioner himself has given an
opportunity to the complainant by filing an application to seek
permission to examine the said witness. At the relevant time, the
complainant has objected the same and now without assigning any
reason, the complainant has filed an application and said application is
allowed by the Court. Moreover, no reasons are assigned by the
complainant why this witness is not examined at the relevant stage. Only
to fill up the lacuna now the application is filed and the learned trial
Court without considering the object of filing the application, allowed
the application, which is erroneous. In support of his contention, he
placed reliance on the decision of this Court in Criminal Writ Petition
No.1658/2021 decided on 13/07/2021 (Nayna Rajan Guhagarkar Vs.
The State of Maharashtra), then Rajaram Prasad Yadav vs. State of Bihar
[(2013) 14 SCC 461] and Swapan Kumar Chatterjee Vs. Central Bureau
of Investigation in Criminal Appeal No.15 of 2019 decided on
04/01/2019.
6. Per contra, learned Counsel for the complainant supported
the order passed by the Magistrate and submitted that the power under
Section 311 of Cr.P.C. is manifestly in two parts and when the evidence
appears to be essential for the just decision of this case, then the Court is
right in allowing the complainant to adduce the evidence by invoking
the powers under Section 311 of Cr.P.C., therefore, no illegality is
committed by the Court, and therefore, the petition is devoid of merits
and liable to be dismissed.
7. I have heard learned Counsel for both the parties. Perused
the documents on record it is undisputed fact that the present petitioner
is prosecuted for the offence punishable under Section 138 of the N.I.
Act. It is also undisputed that below Exhibit 70, the petitioner has filed
an application to examine the bank witness. At the relevant time, the
complainant has objected for the same and the application came to be
rejected. The writ petition filed against the said order is also withdrawn
as this Court has shown the disinclination to interfere with the said
order. Thereafter, the final submissions were made and the case was
posted for the judgment and the complainant has filed an application on
the ground that now it came to his knowledge that said witness is
essential for the just decision of the case and filed an application and
said application is allowed.
8. Before entering into the controversy it is necessary to see
the object underlying under Section 311 of Cr.P.C. which is explained by
the Hon'ble Apex Court in the case of Zahira Habibullah Sheikh & anr.
Vs. State of Gujarat & ors. [2006 (3) SCC 374] wherein the Hon'ble
Apex Court has observed that object underlying Section 311 of the Code
is that there may not be failure of justice on account of mistake of either
party in bringing the valuable evidence on record or leaving ambiguity in
the statements of the witnesses examined from either side. The
determinative factor is whether it is essential to the just decision of the
case. The section is not limited only for the benefit of the accused, and it
will not be an improper exercise of the powers of the court to summon a
witness under the section merely because the evidence supports the case
for the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under the
Code and empowers Magistrate to issue summons to any witness at any
stage of such proceedings, trial or enquiry. In Section 311 the significant
expression that occurs is "at any stage of inquiry or trial or other
proceeding under this Code". It is, however, to be borne in mind that
whereas the section confers a very wide power on the Court on
summoning witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the necessity for
application of judicial mind. Thus, In order to enable the court to find
out the truth and render a just decision, the salutary provisions of
Section 311 are enacted whereunder any court by exercising its
discretionary authority at any stage of inquiry, trial or other proceeding
can summon any person as witness or examine any person in attendance
though not summoned as a witness or recall or re-examine any
person already examined who are expected to be able to throw light
upon the matter in dispute. The object of the provision as a whole is to
do justice not only from the point of view of the accused and the
prosecution but also from the point of view of an orderly society. This
power is to be exercised only for strong and valid reasons and it should
be exercised with caution and circumspection. Recall is not a matter of
course and the discretion given to the court has to be exercised judicially
to prevent failure of justice. Therefore, the reasons for exercising this
power should be spelt out in the order.
8. In the light of the above observations and in the light of the
guidelines issued by the Hon'ble Apex Court in the case of Rajaram
Prasad Yadav vs. State of Bihar (supra) wherein it is held that :
"while dealing with an application under Section 311
Cr.P.C. read along with Section 138 of the Evidence Act, we
feel the following principles will have to be borne in mind
by the Courts:
(a) Whether the court is right in thinking that
the new evidence is needed by it?
(b) The exercise of the widest discretionary
power under Section 311 CrPC should ensure
that the judgment should not be rendered on
inchoate, inconclusive and speculative
presentation of facts, as thereby the ends of
justice would be defeated.
(c) If evidence of any witness appears to the
court to be essential to the just decision of the
case, it is the power of the court to summon and
examine or recall and re-examine any such
person.
(d) The exercise of power under Section 311
CrPC should be resorted to only with the object
of finding out the truth or obtaining proper
proof for such facts, which will lead to a just and
correct decision of the case.
(e) The exercise of the said power cannot be
dubbed as filling in a lacuna in a prosecution
case, unless the facts and circumstances of the
case make it apparent that the exercise of power
by the court would result in causing serious
prejudice to the accused, resulting in
miscarriage of justice.
(f) The wide discretionary power should be
exercised judiciously and not arbitrarily.
(g) The Court must satisfy itself that it was in
every respect essential to examine such a
witness or to recall him for further examination
in order to arrive at a just decision of the case.
(h) The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court to
determine the truth and to render a just
decision.
(i) The Court arrives at the conclusion that
additional evidence is necessary, not because it
would be impossible to pronounce the judgment
without it, but because there would be a failure
of justice without such evidence being
considered.
(j) Exigency of the situation, fair play and good
sense should be the safe guard, while exercising
the discretion. The Court should bear in mind
that no party in a trial can be foreclosed from
correcting errors and that if proper evidence was
not adduced or a relevant material was not
brought on record due to any inadvertence, the
Court should be magnanimous in permitting
such mistakes to be rectified.
(k) The Court should be conscious of the
position that after all the trial is basically for the
prisoners and the Court should afford an
opportunity to them in the fairest manner
possible. In that parity of reasoning, it would be
safe to err in favour of the accused getting an
opportunity rather than protecting the
prosecution against possible prejudice at the cost
of the accused. The Court should bear in mind
that improper or capricious exercise of such a
discretionary power, may lead to undesirable
results.
(l) The additional evidence must not be received
as a disguise or to change the nature of the case
against any of the party.
(m) The power must be exercised keeping in
mind that the evidence that is likely to be
tendered, would be germane to the issue
involved and also ensure that an opportunity of
rebuttal is given to the other party.
(n) The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in order
to meet the ends of justice for strong and valid
reasons and the same must be exercised with
care, caution and circumspection. The Court
should bear in mind that fair trial entails the
interest of the accused, the victim and the
society and, therefore, the grant of fair and
proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as
well as a human right.
9. In the light of the above principles if the facts of the present
case are considered admittedly, at the time of launching the prosecution
or filing the complaint against the present petitioner, the complainant
was well aware regarding the memos issued by the bank, and therefore,
it was obligatory on the part of the complainant to examine this witness
to prove his case. At that time, the complainant has not used the
recourse to examine the such witness. Thereafter the opportunity was
with the complainant to cross-examine the witness when the present
petitioner who is the accused has filed an application but said
application is opposed by the complainant and same was rejected by the
trial Court. Subsequent to that writ petition was filed and it was
withdrawn by the petitioner and thereafter the final submissions were
made by both the sides and at the stage of the final submissions the
application is filed. Thus, it is apparent that the complainant initially has
closed his evidence thereafter the statement of the accused was recorded
under Section 313 of Cr.P.C. After recording the statement under Section
313 of Cr.P.C. the accused has filed an application for examining the
witness by invoking Section 311 of Cr.P.C. the same was objected.
Thereafter the said order was challenged by the petitioner before this
Court and subsequently the writ petition was withdrawn and thereafter
the matter was fixed for final submissions. Thus, the application came to
be filed at a very belated stage. Moreover, the application Exhibit 75
nowhere contains the purpose why the complainant has not examined
the said witness at the earlier stage and why the opportunity is to be
granted to the complainant. Admittedly, the provision under Section 311
of Cr.P.C. not be invoked or used for filling up the lacuna. Considering
the fact and in view of the observation of the Hon'ble Apex Court in the
case of Swapan Kumar Chatterjee Vs. Central Bureau of Investigation
(supra) in para No.13 it is held as under:
"13. Where the prosecution evidence has been
closed long back and the reasons for
non-examination of the witness earlier is not
satisfactory, the summoning of the witness at
belated stage would cause great prejudice to the
accused and should not be allowed."
10. The said observation is applicable in the present case also
wherein the complainant evidence has been closed long back.
Complainant was aware about the memos which were issued by the
bank. The accused has filed an application for recording the evidence of
the said witness i.e. the bank witness. At that time, complainant has
objected the same and subsequently at the final stage of the proceeding
this application is filed and i.e. also without assigning any reasons. In
view of the observation of the Hon'ble Apex Court that when the
summoning of witness at a belated stage without assigning any reasons
would definitely cause great prejudice to the accused, and therefore, it
should not be allowed. In view of that, the writ petition deserves to be
allowed. Accordingly, I proceed to pass the following order:
(i) The writ petition is allowed.
(ii) The order passed by the Judicial Magistrate First
Class, Court No.2, Seloo below Exhibit-75 in S.C.C.
No.855/2015 dated 26/06/2024 is hereby quashed and set
aside.
(iii) The application filed by the complainant for seeking
permission to examine the witness by invoking power under
Section 311 of Cr.P.C. is hereby rejected.
11. Learned Counsel for the complainant requested for six
weeks time as he wants to challenge this order before the Apex Court.
12. The operation and implementation of this order be stayed
for six weeks.
13. The petition is disposed of.
(URMILA JOSHI-PHALKE, J.)
*Divya
