Section 311 CrPC Cannot Be Used To Fill Evidentiary Gaps At Final Stage Of Section 138 NI Act Trial: Bombay HC

Justice Abhay J. Mantri allowed the writ petition filed by the accused. The Court found that the recall application moved under Section 311 of the Code of Criminal Procedure (CrPC) disclosed no cogent reason, and took note that the accused had already filed written arguments before the trial court.

The Court reasoned that since a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) rests entirely on the cheque in question, proof of that cheque is essential, and a complainant who has not proved it cannot be allowed to fill the lacuna by recalling himself after the evidence has closed.

Background

The respondents had filed a complaint under Section 138 of the NI Act against the petitioner. Respondent 1 led his evidence, which concluded in 2017, and the statement of the accused under Section 313 CrPC was also recorded. The matter was then posted for final arguments.

In the course of arguments, the accused contended that Respondent 1 had not proved the cheque on which the complaint was founded. It was at this stage that Respondent 1 learnt that the cheque had not been properly produced on record. He then applied to the trial court to recall himself as a witness so that he could prove the original cheque.

The trial court rejected the application, holding that the complainant could not recall himself at the stage of final arguments merely to fill a lacuna in his case.

Respondent 1 carried the matter in revision to the Sessions Court, which allowed the revision, set aside the trial court's order, and permitted him to adduce evidence to the limited extent of proving the cheque. The accused challenged that order before the High Court by way of a writ petition.

The petitioner argued that the complaint was at the final arguments stage and that the recall application had been moved solely to plug a gap in the complainant's case. The application, it was submitted, did not set out any cogent reason for recall. On this basis, the petitioner maintained that the trial court's refusal was just and proper, and that the Sessions Court had erred in allowing the revision without recording reasons.

The respondents, for their part, submitted that Respondent 1 was uneducated and did not know English, and was therefore unaware of the contents of the complaint. They contended that the lapse was the fault of his advocate and that the complainant ought not to suffer on account of his counsel's negligence. They sought dismissal of the petition.

The Court answered the question in the negative on the facts before it.

It noted that Section 311 CrPC empowers a court to summon, recall and re-examine any witness at any stage of an enquiry, trial or other proceeding, where the evidence of that witness appears essential to the just decision of the case.

On a reading of the recall application, the Court found that it gave no reason for recalling the witness, and did not explain why the original cheque had not been produced before the trial court. In the absence of a cogent reason, the Court held that recall was not proper, and observed that the application appeared to have been filed casually, without recording any grounds for the relief sought.

The Court also recorded that, when asked during the hearing, the respondent was unable to point to any ground in the application on which reliance could be placed.

The respondents' explanation that Respondent 1 could not understand English did not find favour with the Court. When queried, the respondent was unable to explain how he could have been unaware of the contents of his affidavit of evidence, which had been filed in Marathi.

The Court disagreed with the view that the complainant could not be denied an opportunity to prove the cheque merely because it had not been formally proved during trial, the arguments not yet having commenced.

Since the entire complaint under Section 138 of the NI Act rests on the cheque in question, the Court held that proof of the cheque is essential to the case. As Respondent 1 had not proved it, the Court found that it would not be appropriate to allow him to fill that lacuna by recalling himself, particularly when the accused had already filed written arguments before the trial court.

Turning to the revisional order, the Court held that it was contrary to the material on record, as the Sessions Court had merely referred to the photocopy of the original cheque annexed to the complaint. The Court said it could find no basis on which the Sessions Court had allowed the revision.

The High Court allowed the writ petition, quashed and set aside the order of the Sessions Court, and restored the order of the trial court rejecting the application for recall.