Facts of the Case

The petitioners, comprising a partnership firm and its partners, challenged the order of the Metropolitan Magistrate allowing the complainant's application under Section 311 CrPC to examine an additional witness during the trial of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881.

The complainant had alleged that he advanced a loan to the accused, and in discharge of the liability, the accused issued three cheques amounting to ₹14,50,000. The cheques were dishonoured with the endorsement "Payment Stopped by Drawer," leading to prosecution under Section 138 of the Negotiable Instruments Act.

After the complainant had been examined and cross-examined, the accused's statement under Section 313 CrPC had been recorded, and even the defence witness had been examined. Subsequently, the complainant moved an application under Section 311 CrPC seeking permission to examine an additional witness, which was allowed by the Magistrate. The accused challenged this order before the Bombay High Court under Article 227 of the Constitution.

Issues Involved

  1. Whether the Magistrate was justified in allowing an application under Section 311 CrPC after completion of evidence and defence.
  2. Whether the application was merely an attempt to fill lacunae in the complainant's case.
  3. Whether recalling the complainant and examining an additional witness was necessary for arriving at a just decision.

Petitioners' Arguments

The petitioners contended that:

  • The application under Section 311 CrPC was filed at a highly belated stage after the complainant's evidence, the accused's statement under Section 313 CrPC, and defence evidence had already concluded.
  • The complainant sought to fill the shortcomings in his case after becoming aware of the defence taken by the accused.
  • The accused had already produced bank statements showing repayment of the loan through banking transactions.
  • Neither the statutory demand notice nor the complaint alleged that the payments made by the accused represented TDS, GST, or professional fees.
  • Therefore, permitting additional evidence at such a late stage would seriously prejudice the defence.

Respondent's Arguments

The complainant argued that:

  • The proposed witness was essential for proper adjudication of the dispute.
  • Although the accused claimed to have repaid the loan, the complainant maintained that the amounts reflected in the bank account related to professional charges payable by the accused as the complainant was a Chartered Accountant.
  • The complainant sought examination of his Chartered Accountant to establish the true nature of the disputed transactions.
  • Since the controversy centred on whether the payments represented loan repayment or professional fees, additional evidence was necessary for a just and complete decision.

Court Order / Findings

The Bombay High Court upheld the Magistrate's order permitting additional evidence.

The Court observed that:

  • The principal controversy in the case was whether the payments made by the accused represented repayment of the alleged loan or payment of professional charges.
  • Determination of this factual issue was crucial for proper adjudication of the complaint.
  • Examination of the complainant's Chartered Accountant would assist the Court in arriving at the truth.
  • Section 311 CrPC confers wide discretionary powers upon the Court to summon or examine any witness whenever such evidence is necessary for a just decision.
  • The Magistrate had exercised this discretion judiciously.
  • No perversity, illegality, or jurisdictional error was found in the impugned order warranting interference under Article 227 of the Constitution.

Accordingly, the Criminal Writ Petition was dismissed.

Important Clarification

The judgment reiterates that:

  • Section 311 CrPC is intended to advance the cause of justice rather than restrict it on procedural grounds.
  • Even after completion of evidence, a court may permit additional witnesses if their testimony is essential for determining the real controversy.
  • Mere delay in filing an application under Section 311 CrPC is not sufficient to reject it where the proposed evidence is necessary for a fair adjudication.
  • Supervisory jurisdiction under Article 227 will not ordinarily be exercised to interfere with discretionary orders that are legally and judicially passed.

Link to Download the Order

https://www.mytaxexpert.co.in/uploads/1785564063_2494compressed.pdf  

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