2015 (2) TMI 1366 - HC - Indian Laws

Dishonor of Cheque - defence evidence is being produced by the petitioner to establish that the cheque had not been given to discharge any liability - measure of security - HELD THAT - The petitioner has already set his defence as is apparent from his statement under Section 313 Cr.P.C. He has also examined two defence witnesses. The question which the petitioner wants to put to the witness by re-summoning him can be established by him while producing his defence evidence. The presumption under Section 139 of the Act can be rebutted by even producing defence evidence. No ground is made out at this stage to allow the application under Section 311 Cr.P.C. to re-summon the complainant - it is not deemed appropriate to allow the application under Section 311 Cr.P.C. as the defence available with the petitioner has already been put on the record. Application dismissed.

Summary

Issues:
1. Application under Section 311 Cr.P.C. read with Section 145 (2) Cr.P.C. for recalling the complainant for re-examination dismissed.
2. Defence evidence produced by the petitioner to establish the nature of the cheque.
3. Necessity of re-summoning the complainant as a witness.
4. Consideration of the arguments regarding the necessity of re-summoning the complainant.
5. Presumption under Section 139 of the Act and the possibility of rebutting it with defence evidence.
6. Decision on allowing the application under Section 311 Cr.P.C. for re-summoning the complainant.
7. Stage of the case and the appropriateness of allowing the application under Section 311 Cr.P.C.
8. Availability of provisions under Section 294 (3) Cr.P.C. for establishing documents.

Analysis:

1. The judgment revolves around the dismissal of an application under Section 311 Cr.P.C. along with Section 145 (2) Cr.P.C. for recalling the complainant for re-examination in a case involving a dishonoured cheque. The petitioner sought to recall the complainant based on new evidence against him, but the court found the plea to be vague and lacking substantial grounds for re-examination.

2. The petitioner produced defence evidence to establish that the cheque in question was not given to discharge any liability but as a security measure. This evidence was crucial in determining the nature of the cheque and the intention behind its issuance.

3. The necessity of re-summoning the complainant as a witness was argued by the petitioner, stating that it was essential to confront the complainant regarding the issuance of the cheque in light of the ongoing legal proceedings under Section 138 of the Act.

4. After considering the arguments presented, the judge noted that the petitioner had already set forth his defense through statements under Section 313 Cr.P.C. and examination of defence witnesses. The court found that the petitioner could establish the required information through his existing defense evidence.

5. The judgment discussed the presumption under Section 139 of the Act, highlighting that it could be rebutted by producing defense evidence. The court emphasized that the grounds for re-summoning the complainant were not substantial at that stage of the case.

6. Ultimately, the court decided not to allow the application under Section 311 Cr.P.C. for re-summoning the complainant, considering that the petitioner had already put his defense on record and the necessary information could be established through existing evidence.

7. Based on the stage of the case and the adequacy of the defense available with the petitioner, the court deemed it inappropriate to grant the application for re-summoning the complainant, leading to the dismissal of the petitioner's plea.

8. The judgment concluded by mentioning that if the petitioner sought to establish certain documents, they could utilize the provisions of Section 294 (3) Cr.P.C., indicating an alternative approach for presenting additional evidence in the case.