Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

Petitioner was a proprietorship and a civil and structural contractor carrying on its business in various states of the country.

As per the agreement between the petitioner and respondent, the petitioner was required to provide undated security cheque to the respondent to cover the full value of the material supply.

It was stated that 5 undated security cheques totalling an amount of Rs 63,00,000 and one current dated cheque amounting to Rs 2,63,700 were prepared. Further, the petitioner also sent an email to the respondent attaching the scanned copies of the cheques. After which the work started and during the course of work, the respondent asked for monies and on that basis, the petitioner issued a cheque which was returned by Bank.

In view of the above, a legal notice was sent out demanding the said amount, then the petitioner responded that it would make the necessary payment. Failing to which a complaint was filed by the respondent under Section 138 NI Act. Additional Chief Metropolitan Magistrate, Saket summoned the petitioner.

On being aggrieved with the above, an instant petition was filed.

Analysis, Law and Decision

Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences.

Can High Court step into the shoes of the Metropolitan Magistrate?

The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of an accused, as to why he should not be tried under Section 138 NI Act. The said plea, as to why he should not be tried under Section 138 NI Act is to be raised by the accused before the Court of Metropolitan Magistrate under Sections 251 and 263(g) CrPC.

Bench further expressed that,

The offence under Section 138 of the N.I. Act is an offence in the personal nature of the complainant and since it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act, he alone has to take the plea of defense and the burden cannot be shifted to complainant.

Recalling of Witness

Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonor of cheque, issuance of demand notices etc., he can be cross-examined only if the accused makes an application to the Court as to, on what point he wants to cross-examine the witness (es) and then only the Court shall recall the witness by recording reasons thereto.

As per the procedure prescribed under CrPC, if the accused appears after service of summons, the Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during the trial and ask him to take notice under Section 251 CrPC and enter his plea of defence and fix the case for defence evidence, unless an application is made under Section 145(2) of NI Act for recalling a witness for cross-examination on by an accused of defence.

Bench in the present matter did not find any material which could be stated of sterling and impeccable quality warranting the invocation of the jurisdiction of this Court under Section 482 CrPC.

High Court observed that the issues in the instant matter involved the disputed question of facts and law and cannot be decided unless and until the parties go to trial and lead their respective evidence.

“…invariably the initial phase of a litigation under Section 138 of the N.I. Act depends on how well the pleadings or the allegations are laid down or articulated, by the complaint, in the ultimate analysis it is the trial that alone can bring out the truth so as to arrive at a just and fair decision for the parties concerned.” 

Therefore, the no flaw or infirmity in the proceedings pending before the Trial Court was found.[Awadh Constructions v. Amarpreeet Shuttering, 2022 SCC OnLine Del 1034, decided on 13-4-2022]

Advocates before the Court:

For the Petitioner: Amit Pawan, Advocate

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Present application was filed under Section 482 of the Code of Criminal Procedure was filed to quash the impugned order passed by the Additional Sessions Judge arising out of crime registered under Section 307 of the Penal Code, 1860, by which two applications filed by the applicant/accused under Section 311 of the Code have been rejected.

Analysis, Law and Discussion

High Court noted that trial Court by its order dismissed the applications for recalling the witnesses for further cross-examination and rejected the submission urged on behalf of the applicant on the ground that the defence had elaborately cross-examined.

If there is any contradiction or ambiguity in the prosecution evidence. It is a settled position of law that the accused would be entitled to benefit of the doubt.

Trial Court’s order had been assailed on two grounds:

  • After reading the evidence of PW-1 and PW-2 the identity of scribe Suresh Singh was not clear.
  • If the complaint had been written by Suresh Singh, son of Rama Shankar who died about one year before the incident, in that case, the genesis of the prosecution case would be proved false.

Section 311 is manifestly in two parts, the first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.

Further, the Court observed that, Section 311 of the Code gave wide power to the Court to summon a material witness or to examine a person present on Court or to recall a witness already examined.

The said Section confers a wide discretion on the court to act as the exigencies of justice require.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the court. But the second part does not allow any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge [Ram Jeet v. State of U.P., AIR 1958 All 439]

In the present matter, Bench observed that, PW-1 is not an eyewitness of the incident, the FIR had been lodged by PW-1 after about 46 hours of the incident on the basis of information received from PW-2.

The application for recalling PW-1 had been filed after about 4 years of recording the statement-in-chief of the PW1 and another application for recalling PW-5 filed after about one year of recording the examination-in-chief of PW-5.

In Court’s opinion, the trial judge gave well-founded reasons for rejecting the applications.

Hence, the impugned order passed by the trial court was affirmed and the present application under Section 311 of the Code was dismissed.[Bheem Singh v. State of U.P., 2022 SCC OnLine All 40, decided on 18-1-2022]

Advocates before the Court:

Counsel for the Applicant: Neeraj Pandey, Om Prakash Singh Sikarwar

Counsel for the OP: G.A.