2024 (4) TMI 368 - HC - Indian Laws

Dishonour of Cheque - seek production of documents in order to discover or to obtain proper proof of the relevant facts - Section 311 of the Cr. P.C. - HELD THAT - The petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr. P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr. P.C., sought to bring on record the documents that are now being sought to be brought on record by way of the application in question. The said application was withdrawn by the petitioner on 23.10.2019. The petitioner has not sought to explain the reason for withdrawing the said application, nor submitted any change in circumstances that would justify a new application with the same prayer to be filed afresh. The judgment of the High Court of Bombay in U.T. OF DADRA AND HAVELI AND ORS. VERSUS FATEHSINH MOHANSINH CHAUHAN 2006 (8) TMI 684 - SUPREME COURT cannot come to the aid of the petitioner, as in the said case, the earlier application under Section 311 of the Cr. P.C. seeking recall of PW2 therein, had been filed by the complainant therein. However, the same was withdrawn by the complainant. Within four days thereof, the prosecution filed an application seeking recall of four witnesses, including PW2, contending that these witnesses had earlier deposed due to threats received by them from the accused. It was in those peculiar facts, that the High Court of Bombay upheld the Order of the learned Trial Court therein allowing the application of the prosecution. The application in question in the present case has been, admittedly, filed at a belated stage. It appears to be an afterthought. It only makes vague averments, and is also bereft of any explanation with regard to such delay. The learned Trial Court has also correctly observed that the petitioner has failed to file such documents with the complaint(s) itself or at an earlier and appropriate stage, even after being in possession of the said documents. There is also no explanation in the application in question with regard to the withdrawal of the earlier application seeking similar relief. The learned Trial Court has, therefore, rightly rejected the application in question by the Impugned Order and has also given detailed and cogent reasons while dealing with the same. Therefore, the Impugned Order does not warrant any interference by this Court. There are no merit in the present petitions. The same are, accordingly, dismissed.

Summary

Issues Involved:
1. Challenge to the Order dated 18.02.2022 by the Trial Court.
2. Application under Section 311 of the Cr. P.C. for recalling the petitioner as a witness.

Summary:

1. Challenge to the Order dated 18.02.2022 by the Trial Court:
The petitions were filed u/s 482 of the Cr. P.C., challenging the Order dated 18.02.2022 by the Trial Court, which dismissed the application u/s 311 of the Cr. P.C. for recalling the petitioner as a witness. The complaints were initially filed on 26.09.2015. The respondents sought quashing of these complaints, which was dismissed by the High Court on 18.02.2019. Notice u/s 251 of the Cr. P.C. was framed against the respondents, who pleaded not guilty and requested a trial. The petitioner filed an application u/s 311 of the Cr. P.C. on 16.09.2019 to place on record certain pleadings and documents, which was later withdrawn on 23.10.2019. The petitioner closed his evidence on 03.03.2020. The respondents' statements u/s 313 of the Cr. P.C. were recorded on 10.12.2021, and the matter was set for final arguments. The petitioner then filed another application u/s 311 of the Cr. P.C. on 11.01.2022, which was dismissed by the Trial Court on 18.02.2022.

2. Application under Section 311 of the Cr. P.C. for recalling the petitioner as a witness:
The petitioner argued that the documents sought to be produced were part of the record and essential for a fair adjudication of the complaint. The counsel cited various judgments to support the claim that the best available evidence should be allowed and that Section 311 of the Cr. P.C. should be read along with Section 165 of the Indian Evidence Act, 1872. The respondents countered that the petitioner had previously withdrawn a similar application and that the trial had been pending since 2015. The court emphasized that Section 311 of the Cr. P.C. is discretionary and should be exercised with caution. It noted that the petitioner failed to explain the withdrawal of the earlier application or any change in circumstances justifying the new application. The court also highlighted the importance of an expeditious trial, especially in cases under Section 138 of the NI Act, which are intended to be summary trials. The court concluded that allowing the application would derail the proceedings and defeat the purpose of the provision. The petitions were dismissed, and the pending applications were rendered infructuous.