Punjab and Haryana High Court: A Single Judge Bench of Sumeet Goel, J., refused to interfere with the trial court orders, holding that the power to recall witnesses and reopen evidence under Section 348, Nagarik Suraksha Sanhita, 2023 (BNSS), cannot be invoked merely to fill gaps in the defence, particularly when the accused has already been afforded sufficient opportunity to lead evidence. The Court observed that the inherent jurisdiction under Section 528 BNSS cannot be invoked to interfere with reasoned trial court orders in the absence of illegality or perversity.
Background
The dispute arose from the petitioner’s alleged borrowing of ₹10,30,000 from the respondent-complainant (respondent) on different occasions. The respondent relied upon its books of account, ledger entries and bank statements to substantiate the alleged transactions.
It was further alleged that, to discharge the said liability, the petitioner issued a Cheque dated 27 August 2021 for ₹10,30,000. However, the cheque was dishonoured due to “insufficiency of funds”. A legal notice was issued, pursuant to which the amount remained unpaid, which led to the filing of complaint under Section 138, Negotiable Instruments Act, 1881 (NI Act).
During the proceedings, the respondent’s representative was examined at length. During cross-examination, the defence questioned him about the transactions in question, J-Forms, connected firms and relevant writings. He also produced various documents, including books of account, ledger entries and bank statements. The respondent’s representative was subsequently recalled and extensively cross-examined by the defence.
The petitioner, however, denied the alleged loan transaction and contended that the cheque in question had been obtained as a security cheque and had not been issued against any legally enforceable debt or liability. He further claimed that the amount in question was payable to him for crops sold during 2018—2020. According to him, the transactions relating to these crop sales had been recorded through other firms connected with the respondent. He sought to rely on J-Forms, auction registers and other market records in support of his defence.
During the defence evidence stage, the petitioner examined a Market Committee official (DW 1), who produced the original auction register and records relating to crop sales through firms connected with the respondent. On 18 May 2026, when the matter was listed for the examination of a defence witness, 1 witness appeared but refused to depose. As no other witness was present, the trial court closed the defence evidence.
Thereafter, the petitioner filed an application under Section 348 BNSS [corresponding to Section 311, Criminal Procedure Code, 1973 (CrPC)] read with Section 94 BNSS, seeking to reopen his defence evidence, recall DW 1 and produce additional documents. He also sought permission to examine a handwriting expert. By an order dated 8 September 2026, the trial court dismissed the application, observing that the accused had already examined the Market Committee Clerk and cross-examined the respondent regarding the relevant J-Forms. It further noted that the application had been filed at an advanced stage of the proceedings and that allowing it at such a belated stage would cause grave injustice and delay the trial.
Aggrieved by these orders, the petitioner has filed the present petition under Section 528 BNSS seeking to quash the orders dated 18 May 2026 and 8 September 2026.
Also Read: SC on Recall of Witness under Section 311 CrPC | SCC Times
Contentions
The petitioner contended that the impugned orders had deprived him of a fair opportunity to establish his defence. He submitted that the evidence sought to be produced would go to the root of the complaint, as he had consistently denied borrowing any money from the respondent. He further contended that the amounts received by him were payments for crops sold to firms connected with the respondent. The relevant J-Forms, auction registers and account books, according to him, would establish the true nature of the transactions and assist the Court in determining whether the cheque had been issued towards a legally enforceable debt or liability. He assured the Court that allowing the application would neither prejudice the respondent nor delay the trial. Accordingly, he sought 1 effective opportunity to complete the examination of the recalled witness and have the handwriting on the relevant documents examined by a handwriting expert.
The respondent, on the other hand, contended that the petition was merely an attempt to delay the trial, which had already progressed substantially. He submitted that the petitioner had been granted sufficient opportunities to lead his defence and had already examined DW 1. Further, the petitioner had been aware of the nature of his defence from the outset and could not be permitted to repeatedly reopen his defence merely because he subsequently realised that additional material might be useful. The respondent also argued that the power under Section 348 BNSS is discretionary and cannot be exercised merely to fill gaps in the defence. Accordingly, he prayed for the dismissal of the petition.
Issue
Whether the orders dated 18 May 2026 and 8 September 2026 suffer from illegality or perversity warranting interference by the High Court in the exercise of its inherent jurisdiction?
Analysis
After hearing the parties, the Court relied on the judgment in Karamjit Singh v. State of Punjab1, which explained that Section 311 CrPC confers wide discretionary powers on the Court, including the power to summon any person as a witness at any stage of an inquiry, trial or other proceeding. However, the exercise of such powers must be supported by cogent and clear reasons and must conform to the fundamental principles of criminal jurisprudence.
The Court noted that the petitioner had been given ample opportunity to establish his defence. He had been permitted to cross-examine the respondent regarding the J-Forms and writings relied upon by him. He had also been allowed to lead defence evidence and examine DW 1, who produced the available records and deposed about the auction register and J-Forms relating to crop transactions, including transactions conducted through the respondent and certain related firms.
The Court further observed that the trial court had closed the defence evidence on 18 May 2026 after the petitioner had examined Defence Witness 1 and had been given an opportunity to produce another witness, who refused to depose. The petitioner did not challenge the order dated 18 May 2026 at that stage. Instead, he subsequently filed an application seeking to reopen the defence evidence, recall the witness, produce additional documents and examine a handwriting expert, well after the defence evidence had been closed.
The Court opined that the power under Section 311 CrPC, corresponding to Section 348 BNSS, is wide and plenary but must be exercised judiciously and not routinely, particularly in the absence of cogent justification. The power is intended to secure evidence necessary for a just decision and not to enable a party to improve, supplement or reconstruct its case after closure of evidence.
The Court observed that the petitioner had already raised the defence concerning the J-Forms and crop-sale transactions during the complainant’s cross-examination and had also examined the Market Committee official. Since the proposed additional evidence related to a defence already raised during the trial, the Court found no sufficient justification for reopening the proceedings at such an advanced stage.
The Court further held that the mere relevance of a document to the defence could not, by itself, justify reopening the entire defence evidence. It also found no reason to interfere with the trial court’s decision not to permit the proposed handwriting examination.
Regarding the exercise of inherent jurisdiction under Section 528 BNSS, the Court observed:
“This Court, while exercising jurisdiction under Section 528 BNSS, is not required to substitute its own view merely because another view may also be possible.”
Decision
The Court dismissed the petition, holding that the impugned orders dated 18 May 2026 and 8 September 2026 did not suffer from any illegality or perversity warranting interference. It found that the trial court had appropriately considered and dismissed the petitioner’s application to reopen the defence evidence.
[Avtar Singh v. Des Raj & Co., CRM-M-54995-2026, decided on 1-10-2026]
Advocates who appeared in this case:
For the Petitioner: S.K. Singla, Advocate.
For the Respondent: Jai Bhagwan, Advocate.
1. 2024 NCPHHC 24178
