[S.311 CrPC] Statement Made In Cross-Examination Alone Cannot Be Basis To Recall Witnesses: Bombay High Court

Justice Amit Borkar therefore quashed a Magistrate's order allowing the complainant's application under section 311 of the CrPC to produce two invoices in a cheque bouncing case under section 138 of the Negotiable Instruments Act 1881.

"The discretion has to be exercised by the Court judiciously to prevent injustice unless there are tangible reasons to show how fairness of trial suffered without recall," the court observed.

Facts

The petitioner was the original accused in the cheque bouncing proceeding. During trial the complainant examined himself and during cross-examination stated that he had documentary evidence showing the transactions between the complainant and accused. Following the examination, the accused's statement under 313 of the CrPC was recorded.

Subsequently the complainant filed a second application for producing the invoices, which was allowed by the court. The accused filed an appeal in the High Court against this order.

Advocates for the accused Adithya R. Iyer along with Nyayesh Bharucha & Advit Helekar submitted that the statement made in the cross-examination cannot be the basis to recall the witnesses. He further submitted that the proceeding was fixed for final argument and at that stage allowing application would amount to fill up lacunae.

The complainant's advocate submitted that the accused having called upon the complainant to produce invoices, the application was filed and, therefore, the Magistrate was justified in allowing the application.

At the outset the court said that in light of the factual scenario, "the suggestion in the cross-examination by the accused wherein the complainant shown his willingness to produce on record the invoices does not create any right in favour of the complainant to file an application under Section 311 of the Code of Criminal Procedure, 1973."

The court added that one opportunity was already given to the complainant by passing the order dated 15th November 2021 whereby an earlier application under Section 311 of CrPC was allowed by the Magistrate.

"It is well settled law that the power under Section 311 of the Code of Criminal Procedure, 1973 has been conferred on the learned Magistrate for advancing justice only in a case where the application is bona fide. The delay in trial is also relevant factor."

The court further observed that the invoices cannot only be submitted but will have to be proved with the complainant's testimony which will amount to a "re-trial." "Therefore, in my opinion, the learned Magistrate was not justified in allowing the application," the court held.

"Merely because certain suggestions in the cross-examination are raised on behalf of the accused, does not create right in favour of the complainant to file such application, particularly when the complainant had exercised right under Section 311 of the Code of Criminal Procedure, 1973 on earlier occasion," the bench re-iterated.

Case Title: Niketan Dilip Paldhe V/s. State of Maharashtra & Anr

Citation: 2022 LiveLaw (Bom) 475