2018 (10) TMI 1329 - HC - Indian Laws

Dishonor of Cheque - Section 138 of the NI Act - Application under Section 311 of the Cr.P.C. filed by the applicants/petitioners rejected - Held that - From reading of Section 311 of the Cr.P.C. it is manifested that it comes into operation at any stage to enable the Court to find out the truth by summoning any person as a witness or examined any person who has already examined for obtaining the proper evidence or just decision of the case. The Court should exercised the power under Section 311 of the Cr.P.C. when Court finds it essential to reached the conclusion of the case, but it can not be used to fill-up the lacunas and to give the benefit to any parties by delaying the trial. The petitioners have filed an application under Section 91 of the Cr.P.C. before the trial Court for calling the documents relating to Income Tax Return, Balance Sheets and Statements of the Bank Account of the complainant during the period of 01.04.2007 to 31.03.2009, which was rejected by the trial Court. Thereafter, in revision the learned Sessions Judge has allowed the application and made the observation that the documents can be called through concerning Department. From the decision form Hon ble Apex Court in the matter of Natasha Singh 2013 (5) TMI 964 - SUPREME COURT OF INDIA it is revealed that the Section 311 of the Cr.P.C. expressly provide the Court wide discretion to recall and re-examined any person, if his evidence appears to be essential to the just decision of the case and the Court should not be exercised its discretion arbitrarily, it must be exercised judicially and judiciously as the case may be - In the present case, it is not disputed that the Income Tax Officer had produced the documents before the trial Court in compliance of Section 91 of the Cr.P.C. In lack of the entries of disputed amount in the return, this Court of the opinion that there is no necessity to call the Income Tax Officer as a witness to take his evidence - This is not proper case, in which inherent jurisdiction can be invoked by this Court under Section 482 of the Cr.P.C. Therefore, the petition filed by the petitioners is deserves to be dismissed. Petition dismissed - decided against petitioner.

Summary

Issues:
1. Application under Section 482 of the Cr.P.C. against the order dated 03.08.2018 in Criminal Revision No.540/2017 passed by learned Additional Sessions Judge.
2. Dismissal of application under Section 311 of the Cr.P.C. for calling the Income Tax Officer as a witness.
3. Burden of proof in a case under Section 138 of the NI Act.
4. Interpretation and application of Section 311 of the Cr.P.C. for summoning witnesses.

Analysis:
1. The case involved a complaint under Section 138 of the NI Act against the applicants for dishonoring a cheque. The applicants filed an application under Section 91 of the Cr.P.C. for calling documents related to the complainant's financial records, which was initially rejected but later allowed by the Sessions Court. The Income Tax Officer produced the documents, but his evidence was not recorded by the trial Court.
2. The petitioners subsequently filed an application under Section 311 of the Cr.P.C. to call the Income Tax Officer as a witness, arguing that his testimony was essential to prove the transaction. The trial Court dismissed the application, stating that the officer's evidence was unnecessary as the complainant had already been cross-examined regarding the documents.
3. The petitioners contended that the burden of proof in a case under Section 138 of the NI Act lies on the accused to rebut the presumption. They argued that the Income Tax Officer's testimony was crucial to establish the transaction, citing a relevant judgment.
4. The Court examined the provisions of Section 311 of the Cr.P.C., emphasizing that the power to summon witnesses should be exercised judiciously and not to fill gaps or delay proceedings. Referring to a Supreme Court judgment, the Court highlighted the importance of ensuring that additional evidence is essential to the just decision of the case.
5. After a detailed analysis of the facts, the Court concluded that calling the Income Tax Officer as a witness was unnecessary. The Court noted that the officer had already produced the documents, the disputed amount was not reflected in the Income Tax Return, and the petitioners had cross-examined the complainant on the documents. Therefore, the Court dismissed the petition, stating that invoking inherent jurisdiction under Section 482 of the Cr.P.C. was not warranted in this case.