2021 (12) TMI 731 - HC - Indian Laws

Dishonor of Cheque - Agreement to sell - Collaboration agreements - power to summon Section 138 read with Section 142 of the NI Act - HELD THAT - In the present case, the entire premise of filing of the Criminal Complaints was that the petitioner had paid the amounts of ₹ 30 lacs and ₹ 20 lacs as advance payment for purchase of the aforementioned two properties. On a perusal of the Criminal Complaints, it is noted that the petitioner has averred that amounts of ₹ 30 lacs and ₹ 20 lacs were paid against Receipts. It is also his case that the advance payments were made towards purchase of the aforesaid properties. Besides, in his cross-examination conducted on 18.12.2018, the petitioner had deposed that he was in possession of the original Bayana Receipt, Agreement to Sell and the Collaboration Agreements executed between the erstwhile owners of the properties and the respondent. In this backdrop, the applications under Section 311 Cr.P.C. were filed on 22.07.2019, which came to be dismissed vide the impugned order on 08.08.2019. Further, considering that the factum of execution of the aforesaid Receipts was mentioned in the Criminal Complaints, while other documents were mentioned at the time of the cross-examination in as early as 2018, the petitioner s applications under Section 311 Cr.P.C. for his re-examination and placing on record of the aforesaid documents cannot be said to constitute filling up of lacuna in the case. Both the petitions are allowed, subject to payment of composite cost of ₹ 10,000/- to be deposited by the petitioner with the Delhi State Legal Services Authority within two weeks from the date of passing of this order.

Summary

Issues Involved:
1. Legality of the dismissal of applications under Section 311 Cr.P.C. by the Trial Court.
2. Whether the petitioner’s request to recall and re-examine himself to place additional documents on record constitutes ‘filling up of lacuna’.
3. Applicability of precedents regarding the recall of witnesses and fair trial principles.

Issue-wise Detailed Analysis:

1. Legality of the dismissal of applications under Section 311 Cr.P.C. by the Trial Court:
The petitions were filed to set aside the order dated 08.08.2019 by the Metropolitan Magistrate, which dismissed the petitioner’s applications under Section 311 Cr.P.C. The applications sought to recall and re-examine the petitioner in criminal complaints filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The petitioner argued that essential documents, inadvertently not placed on record initially, needed to be introduced for a fair trial. The respondent opposed, claiming the cheques were stolen and no valid agreements existed, asserting the petitioner had ample opportunity to present the documents earlier.

2. Whether the petitioner’s request to recall and re-examine himself to place additional documents on record constitutes ‘filling up of lacuna’:
The court analyzed the scope of Section 311 Cr.P.C., emphasizing its purpose to summon or recall witnesses if their evidence is essential for a just decision. The Supreme Court precedents in P. Sanjeeva Rao v. State of Andhra Pradesh and Natasha Singh v. Central Bureau of Investigation were cited, highlighting that fair trial principles necessitate granting opportunities to present material evidence. The court noted that the petitioner had mentioned the advance payments and related documents in the complaints and during cross-examination. Hence, the request to re-examine did not amount to filling up a lacuna but was essential for justice.

3. Applicability of precedents regarding the recall of witnesses and fair trial principles:
The court distinguished the present case from Kriplex Chits Pvt. Ltd. v. State (Govt. of NCT of Delhi), where the accused’s repeated requests to recall the complainant were denied due to delays and ample prior opportunities. Here, the petitioner sought to introduce documents admitted during cross-examination but not initially filed. The court underscored that fair trial principles and the right to present a complete defense warranted allowing the petitioner’s request. The court concluded that the petitioner’s applications under Section 311 Cr.P.C. did not constitute filling up a lacuna but were necessary for a fair trial.

Conclusion:
The petitions were allowed, subject to a composite cost of ?10,000 to be deposited with the Delhi State Legal Services Authority. The Trial Court was directed to give the petitioner one opportunity to re-examine himself and allow the respondent to cross-examine on the same date. The decision ensures adherence to fair trial principles and the just determination of the case by allowing the introduction of material evidence inadvertently omitted earlier. The judgment reinforces the judiciary’s commitment to ensuring fairness and thoroughness in legal proceedings.