2019 (6) TMI 1130 - HC - Indian Laws

Dishonor of Cheque - cross-examination of witnesses - Complainant filed an application to recall the witness (CW1) and allow the complainant to produce the relevant documents through its witness - HELD THAT - This Court has clearly observed that the documents of acknowledgement or delivery now cannot be proved from the complainant who is already cross examined, and on this point the person from M/s. BMG Chemicals is the correct witness and is required to be examined in order to find out the truth. In my view, it is in the context of the aforesaid observations, this Court though dismissed the Writ Petitions, has granted liberty to the Complainant to file appropriate applications. The cross examination of the witness of the complainant is over and the matter is closed for arguments. Now the complainant wants to bring on record certain documents which, according to the complainant, would go to the root of the matter. The accused had placed orders for goods with the complainant and the cheques issued as against the said orders when represented to the bankers were returned with remark Payment Stopped . The present complaints are under Section 138 of the Negotiable Instruments Act. The complainant wants to bring on record certain documents, which according to the complainant, are relevant to the transaction between the complainant and the accused and go to the root of the matter - The accused would get an opportunity to cross examine the witnesses at length and no prejudice would be caused to the accused if the documents relating to the transaction are allowed to be produced on record, which would help the trial Court to decide the matter correctly. Section 311 of the Criminal Procedure Code - HELD THAT - This Court does not prevent the Court to summon or even recall the witness. In this context a useful reference could be made to the judgment of the Apex Court in the matter of Mohan Lal Shamji Soni V/s. Union of India ors. 1991 (2) TMI 142 - SUPREME COURT wherein the Apex Court had considered the scope of Section 540 of the Criminal Procedure Code which is similar to Section 311 of the Code. The Apex Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. Petition dismissed.

Summary

Issues Involved:
1. Legality of the order allowing the recall of witnesses and production of documents under Section 311 of the Criminal Procedure Code.
2. Examination of new witnesses and production of additional documents after the case was closed for arguments.
3. Allegations of filling up lacunae and introducing fabricated documents.
4. Interpretation and application of Section 311 of the Criminal Procedure Code.

Detailed Analysis:

1. Legality of the Order Allowing Recall of Witnesses and Production of Documents:
The writ petitions challenge the order dated 21/02/2019 by the Metropolitan Magistrate allowing the complainant's applications under Section 311 of the Criminal Procedure Code. The complainant sought to recall three witnesses and produce additional documents. The High Court initially dismissed similar petitions but granted liberty to file fresh applications with specific averments. The trial court subsequently allowed these applications, prompting the current writ petitions.

2. Examination of New Witnesses and Production of Additional Documents:
The complainant argued that the new documents were crucial to the case and discovered post the initial proceedings. These documents included minutes of a board meeting, bank statements, and letters from a consignment agent, which the complainant claimed were essential to substantiate their claims. The trial court, influenced by the High Court's previous order, permitted the recall of witnesses to introduce these documents.

3. Allegations of Filling Up Lacunae and Introducing Fabricated Documents:
The petitioner accused contended that the applications were an attempt to fill gaps in the complainant's case and introduce potentially fabricated documents. They argued that these documents should have been presented earlier and that the trial court's decision to allow the recall of witnesses was influenced by the High Court's previous order rather than the merits of the case.

4. Interpretation and Application of Section 311 of the Criminal Procedure Code:
The High Court analyzed the scope of Section 311, which allows the court to summon or recall witnesses at any stage to ensure justice. The court referred to the Supreme Court's judgment in Mohan Lal Shamji Soni v. Union of India, emphasizing that the best available evidence should be presented to ascertain the truth. The court highlighted that the trial court's decision was in line with the principles of ensuring a fair trial and that the accused would have the opportunity to cross-examine the recalled witnesses.

Conclusion:
The High Court dismissed the writ petitions, upholding the trial court's decision to allow the recall of witnesses and the production of documents. The court emphasized that the accused's right to cross-examine the witnesses would mitigate any potential prejudice. The judgment reinforced the principle that courts must actively seek the truth and ensure justice by utilizing provisions like Section 311 to admit crucial evidence, even at advanced stages of the trial.