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TMI Blog2020 (9) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... .I.Act)/South-East, New Delhi in complaint case under Section 138 of the Negotiable Instruments Act, 1881 vide CT Cases/3007/2014 titled as Adesh Goel Vs. M/s. Zexus Air Services Pvt. Ltd., whereby the application under Section 311 Cr.P.C. by petitioner/accused no.3 for recall of complainant for further cross examination was dismissed. Further seeks direction thereby to allow the application under Section 311 Cr.P.C. by petitioner/accused no.3 for recall of complainant for further cross examination. 4. The Respondent No.1/Complainant after examining his witnesses, filed an application under Section 311 Cr.P.C on 2l.07.2015 for recalling the witnesses, however, allowed by the Trial Court on 20.01.2016. Further, another application u/s 311 was filed by complainant on 29.03.2016 for recalling of CW-8 and the same was also dismissed. 5. On 13.07.2016, while the Petitioner/ Accused No. 3 was cross examining the complainant, however, the Trial Court directed to complete the cross-examination of witness stating that the sufficient time has been given, consequently, several material and necessary questions were left in haste and could not be put to the complainant by Petitioner / Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is pertinent to note that no certificate under U/s 65B along with translation was given by complainant, it does not show who translated it and without disclosing how and through which device, the conversation was recorded. The Trial Court has not recorded even during cross examination that which device was played from 17 min 10 sec - 17 min 17 sec in the court except a bare statement with regard to playing of the voice of the accused in the court, even the certificate filed by the complainant speaks about recording of the voice in computer and it states that it is a computer generated record which is very much evident that according to the complainant the voice was recorded in the computer and no original such device has been produced in the court to show the recording and it has never come on record where the said conversation was recorded. viii. Ex DW1/X8 - RTI reply received by the complainant. 8. Learned counsel for petitioner further submits that defence witness, DW-2, Shri R. K. Sharma Ex- Director of M/s. Zexus Air Services, Respondent No.2/Accused No.1 was examined and the following documents were put to him during cross-examination for the first time by Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th other accused persons was dismissed on absence of grounds for cheating against Petitioner/Accused No. 3 and other accused persons. Therefore, the Petitioner/Accused No.3, upon discovery of new documents put up by Complainant to the Petitioner, DW -1 and his witnesses at the stage of defence evidence during cross-examination including the complaint vide CT Cases 8423/2017 to initiate criminal proceeding for the offence of cheating filed under Section 200 Cr.P.C by Respondent No.1 /Complainant against Petitioner/ Accused No.3 along with other accused persons. Learned counsel for petitioner further submits that learned Trial Court dismissed his application filed under Section 311 Cr.P.C. ignoring the aforesaid fact and without application of mind. 12. This Court has perused the impugned order dated 29.08.2020 whereby recorded that an application under Section 311 Cr.P.C. which was filed via email on 20.08.2020 was not forwarded to the complainant side for necessary action. Vide the said application, applicant therein sought 15 days adjournment and from the averments in the application, it was seen that the complaint in CT cases 8423/2017 was filed in 2017 and it was dismissed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 251 Cr.P.C. is considered, wherein the accused side states that he has substantiated his defence in his application under section 145(2) N.I. Act. The defence raised in the application were that (1) the accused was never a director or employee or in any manner connected with Ms.Zexus Air Services Pvt. Ltd.; and (2) the accused never approached the complainant to get any job done from the Ministry of Civil Aviation being not related to Ms. Zexus Air Services Pvt. Ltd. and therefore there was no occasion for him to draw the present cheque in question for any liability. It was further defended that the cheque in question was given towards a proposed loan to be given by the accused to the complainant, which was later refused by the accused and the complainant misused the cheque in question. 16. Keeping in view the aforesaid fact, learned Trial Court opined that from the records available, this has been a consistent stand/defence of the accused and he has cross-examined the complainant. The present application states that further cross-examination is warranted for new documents which were put by complainant to defence witnesses. Although the accused side made no endeavou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd., statement of account showing repayment of loan of ₹ 25 Lacs, respectively; and all documents put to DW3 during cross examination from Ex.DW3/X1 to Ex.DW3/X11 that are bank statement, Form No. DIR 12, Form no. MGT7, ITRs, death certificate, passport, NOC, experience certificate were all documents pertaining to accounts or business operation of company Ms. Zexus Air Services Pvt. Ltd. and its then CMD Sh. Suriender Kumar Kaushik. 10. From the records above, it cannot be gathered as to which document the accused side wants to put to the complainant in his further cross-examination. Most of the documents are either admitted by the defence witnesses or pertains to Ms. Zexus Air Services Pvt. Ltd. Be that as it may, accused side despite being given ample opportunities, has failed to explain which document put to any of the defence witness would probably substantiate his defence taken at the time of framing of notice under Section 251 CrPC. The application therefore, for recall of complainant for further cross-examination is completely baseless. From the above discussion, this Court sees no such document which needs to be put to the complainant for further cross-exam ..... 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