2024 (2) TMI 491 - HC - Indian Laws

Dishonour of cheque - Funds Insufficient - Cross-examination of complainant was carried out - accused was provided with due opportunity to examine the complainant or not - failure to appreciate the statement of the accused - failure to satisfy necessary ingredients of the offence complained of - principles of natural justice - HELD THAT - This Court notes that the present petitioner had filed an application under Section 311 of Cr.P.C. for cross-examination of respondent no. 2 before the learned Trial Court on 07.01.2023 after a delay of more than three years and five months from the date of cross-examination of CW-1 i.e. on 26.07.2019. The present petitioner, in his application filed under Section 311 of Cr.P.C. before the learned Trial Court had stated that the complainant needs to be confronted with several documents in relation to his previous alleged relation with one Upender Gupta, without which the complainant's version would go unrebutted, and such questions could not be put to the complainant as there was communication gap between the accused and his counsel. This Court notes that the learned Trial Court, while dismissing the application of present petitioner filed under Section 311 of Cr.P.C., had considered this ground and had observed that the complainant had been extensively cross-examined on 26.07.2019, and the accused had failed to show any sufficient cause to justify the delay of more than three years or any reason as to why the recall of CW-1 for further cross-examination was essential for just decision of the case. Upon thorough examination of the evidence presented, including the cross-examination of the complainant Ghanshyam Dass, this Court notes that that the complainant Ghanshyam Dass was extensively questioned with regard to his association with his attorney and the individual named Upender Gupta. During his cross-examination on 26.07.2019, the complainant disclosed that he has known accused Rajesh Marwah for approximately 7-8 years through his attorney, Mr. Upender Gupta. Furthermore, it was revealed that the complainant has had a relationship with Mr. Upender Gupta for approximately 15-20 years, and had entrusted him with the authority to settle the matter at hand through a Special Power of Attorney (SPA) - It is also noted that the appellant opted not to call Upender Gupta as a witness to substantiate his defense during the proceedings before the learned Trial Court. It is also noted that in the current application, the appellant has not expressed a desire to summon Upender Gupta as additional evidence in the present appeal. Instead, the appellant seeks to conduct further cross-examination of the complainant-respondent as an additional evidence. Thus, it is clear that the petitioner had extensively questioned the complainant in his cross-examination, and there is no ground to further examine the complainant. In these circumstances, this Court is of the opinion that the provisions of 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 miscarriage of justice by delaying the proceedings under Section 138 NI Act, and abuse of process of law, especially in cases where complainant has already been cross-examined in detail and no grounds are shown to recall the witness. This Court does not find any merit in the present petition and the same stands dismissed.

Summary

Issues Involved:
1. Quashing/setting aside the order dated 24.07.2023.
2. Application under Section 311 of the Cr.P.C. for recall of the complainant for cross-examination.
3. Application under Section 391 of Cr.P.C. for taking additional evidence.

Summary:

Issue 1: Quashing/setting aside the order dated 24.07.2023
The petitioner sought to quash the order dated 24.07.2023 passed by the Additional Sessions Judge, which dismissed the application under Section 391 of Cr.P.C. The petitioner argued that the Appellate Court erred in holding that the accused had due opportunity to examine the complainant and failed to appreciate the accused's statement denying knowledge of the complainant. The petitioner contended that the complaint under Section 138 of the NI Act did not satisfy the necessary ingredients and was an abuse of the process of law.

Issue 2: Application under Section 311 of the Cr.P.C. for recall of the complainant for cross-examination
The petitioner had filed an application under Section 311 of Cr.P.C. to recall the complainant for cross-examination, which was dismissed by the learned Metropolitan Magistrate on 07.01.2023. The petitioner argued that the complainant needed to be confronted with documents related to his previous relationship with one Upender Gupta. However, the Trial Court observed that the complainant had been extensively cross-examined on 26.07.2019, and the accused failed to show sufficient cause for the delay or justify the recall of the complainant.

Issue 3: Application under Section 391 of Cr.P.C. for taking additional evidence
The petitioner filed an application under Section 391 of Cr.P.C. for taking additional evidence, which was dismissed by the Appellate Court. The Court noted that the accused had admitted to signing the agreement and the cheque in question. The accused also acknowledged sending an email to Upender Gupta not to present the cheque and admitted that there were insufficient funds in his account on the date of the cheque's presentation. The Court found that the accused had already extensively cross-examined the complainant and failed to show any grounds for further examination. The Court referred to the Supreme Court's judgment in Ajitsinh Chehuji Rathod v. State of Gujarat, which held that additional evidence under Section 391 Cr.P.C. should only be taken if the party was prevented from presenting it during the trial despite due diligence.

Conclusion:
The High Court dismissed the petition, finding no merit in the arguments presented by the petitioner. The Court concluded that the provisions of Section 391 of Cr.P.C. could not be used to delay proceedings or cause inconvenience to the other party, especially when the complainant had already been cross-examined in detail. The judgment was ordered to be uploaded on the website forthwith.