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TMI Blog2024 (1) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... g on its business of mining of granites. The opposite party no. 2 approached the petitioner to provide her with financial assistance for the purpose of expanding her business, which she carried on with her other family members. The petitioner, in good faith, provided financial assistance to the Opposite Party No. 2 from time to time. The opposite party no. 2, in partial discharge of her existing debts and/or liabilities, issued to the petitioner, an account payee cheque bearing no. 713379 dated 10.11.2008, drawn on Axis Bank Limited, Burra Bazar, for a sum of Rs. 2,00,00,000/- (Two Crore Rupees only), which, upon being deposited for encashment by the petitioner with its banker within its validity period was returned unpaid vide cheque return memo dated 04.05.2009, being dishonoured by the banker of the Opposite Party No. 2 for the reason "Funds Insufficient". A demand notice dated 19.05.2009, in terms with Section 138 of the Negotiable Instruments Act, 1881, was issued by the petitioner and the same was received by the opposite party no. 2 herein on 21.05.2009, but was not replied thereto. 4. It is further submitted that the petitioner and the opposite party no. 2 are accuseds in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that during the deposition of the sole defence witness, being Defence Witness No. 1 (hereinafter referred to as DW 1), i.e., the opposite party no. 2 herein, in the course of her examination in chief, tendered a certified copy of the said seizure list which was marked Exhibit A/3. 8. That the said DW 1/opposite party no. 2, in the course of her cross examination in connection with the instant case, sought to make out a case to the effect that in view of Entry No. 7 of the aforementioned seizure list, it would be evident that it is the CBI which had seized the cheque in question, i.e., cheque bearing no. 713379 dated 10.11.2018, and that as such she had never handed over the said cheque to the petitioner. 9. It is the specific case of the petitioner that the cheque in question was never seized by the CBI and that same would be evident upon a bare perusal of Entry Nos. 15 & 16 of the aforementioned seizure list dated 04.04.2009, wherefrom it can be seen that the CBI, vide the very same seizure list, had proceeded to seize signed Cheques bearing nos. 713386, 713344, 713331 and 713334, i.e., Cheques bearing nos. that fall within the series of cheques referred to in Entry No. 7 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os. 3, 7, 15, 16 and 20 of the aforementioned seizure list dated 04.04.2009, were supplied to the above named Vivek Gupta on 17.03.2022, under the cover of a detailed covering letter dated 14.03.2022, issued by the Malkhana Officer, Central Bureau of Investigation, Bank Securities and Fraud, Kolkata and also bearing his signature and stamp. 12. It is also submitted by the petitioner that a bare perusal of the contents of the copy of the said seized cheque book, as supplied to the above- named Vivek Gupta by the CBI, would reflect that the cheque no. 713379 dated 10.11.2008 had never been seized by the C.B.I, as was contended by the Opposite party No. 2 in her deposition as DW1. 13. It is further stated the said Income Tax Return, as seized by the CBI, and a copy of which was supplied to the abovenamed Director of Kali International Pvt Ltd, would show that the set of Balance Sheets expected to accompany the aforementioned Income Tax Return was not seized by the CBI by way of the said seizure list dated 04.04.2009, even though the set of balance sheets for and/or in connection with other Financial Years spanning from 2005-06 to 2006-07, had been so seized. 14. That, Mr. Ramesh Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Court's discretion under Section 311 of the said Code in order to recall PW1 for exhibiting the documents as prayed for. 18. Hence the revision. 19. The opposite party no. 2 in her affidavit in opposition has made out a case that the following documents are to be considered or she would suffer grave prejudice:- i) Photocopies of the relevant order from the date 12.08.10 to 06.04.23 passed before the Court of Learned Metropolitan Magistrate, 14th Court. ii) Photocopy of deposition of DW-1 dated 13.03.14. iii) Photocopy of the relevant portion of balance sheet and profit and loss statement of the Complainant collectively marked as Exhibit-2 in the Complaint Case No. 34911 of 2009 before the Learned Court of 14th Metropolitan Magistrate. iv) Photocopies of the order and judgment passed by the Learned Court of Metropolitan Magistrate 20th Court dated 31.10.14 in Complaint case No. C-34909 of 2009 and 34910 of 2009. v) Photocopy of the order and judgment passed by the Honourable High Court dated 06.12.21 in C.R.A. No. 424 of 2017, CRA 425 of 2017, CRA 426 of 2017 and CRA 427 of 2017 downloaded from the official website of the Court. vi) A copy of the order of Hono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following entry in the said seizure list is relevant in this case:- "Entry No. 7: One cheque book of CA No. 277010200019761 of Axis Bank, Bara Bazar Branch held in the name of Kavita Saraff, containing cheques starting from 713317 to 713318, all signed by Kavita Saraff and issued in the name of Motilal Oswal Security Ltd., Krishna Smelters Pvt. Ltd., Bineet Saraff and Kali International." iii. At this stage, the cross examination of D.W. 1 resumed on 26.10.2017 in C/34911/09 before the learned Court of 14th Metropolitan Magistrate becomes relevant. Exhibit 8 was shown to the witness, who is the opposite party no. 2 herein. The witness has deposed as follows:- "Exhibit- 8 is shown to the witness and on perusal of Exhibit-8 the witness stated that it appears from the documents that:- Serial No. Cheque No. Date of honoured Amounting to Rs. In favour of 1 713320 27.06.08 50,00,000/- Devi Ispat Pvt. Ltd. 2 791139 27.06.08 33,000/- Motilal Oswal Securities Ltd. 3 713323 08.07.08 2,00,00,000/- Krishna S.P Ltd. 4 713327 12.07.08 51,000/- Motilal Oswal Securities Ltd. 5 713329 19.07.08 2,50,00,000/- Kali International Pvt. Ltd. 6 713330 25.07.08 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " iv. All these 43 cheques (duly honoured) barring serial no. 3, were part of the same cheque book as the one containing the cheque in the present case being no. 713379 dated 10.11.2008. v. The witness (DW 1), the opposite party no. 2 herein has stated on oath that:- "....as per the documents all those cheques were honoured before the CBI raid". So admittedly these cheques were not part of the cheque book at the time of seizure thus negating entry no. 7. vi. That being the case, then the entry at no. 7 in the seizure list dated 04.04.2009 appears to be prima facie incorrect and considering that 43 cheques out of the said cheque book containing cheques from 713317 to 713388 were honoured, prior to the raid conducted and seizure made by the CBI on 04.04.2009, it can be presumed that it was the cheque book and not the cheque book containing cheques as stated which was seized. vii. Exhibit 8 shows that 43 cheques out of the said cheque book were honoured prior to the seizure. The cheque in question in the present case being dated 10.11.2008 is also dated prior to the seizure and is part of the same cheque book. 25. In Varsha Garg vs State of Madhya Pradesh & Ors., 2022 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice." 35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed: "18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: "28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision." 49. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms: "43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence- collecting process. They have to monitor the proceedings in aid of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised at any stage and held that: "44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials on record at the relevant stage has been satisfactorily explained and as such the Trial Court should have allowed the prayer under Section 311 Cr.P.C., considering the materials on record, while carrying out its function of administration of criminal justice to meet the ends of justice. The accused/opposite party herein shall have ample opportunity and the liberty to counter the materials to be brought on record by the petitioner. 27. Thus the findings of the learned Trial Judge rejecting the prayer of the petitioner vide order dated 06.04.2023 is clearly, not in accordance, with the view of the Hon'ble Appex Court in Varsha Garg vs State of Madhya Pradesh & Ors. (Supra) decided on August 8, 2022. 28. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. (Zahira Habibullah Sheikh (5) & Anr. vs State of Gujarat & Ors., Appeal (Crl.) 446-449 of 2004, on 8th March, 2006). 29. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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