Rakesh Rathore vs Ratanlal Rathore

Sandeep N. Bhatt, J

Heard learned counsel for the parties on admission.

Learned counsel for the petitioner submits that the dispute has arisen between the petitioner and accused Kamal over the illegal demand. The petitioner approached the police Station Bajana. However, instead of registering FIR, the police recorded only NCR under Section 155 of Cr.P.C. The petitioner approached the Superintendent of Police Ratlam. On the basis of CCTV footage, the SP directed registration of FIR No. 171/2022 under Sections 323, 384, 385, 504 and 506 of IPC. He has submitted that thereafter the security cheque was dishonestly misused to initiate retaliatory proceedings. He has submitted that the prosecution under Section 138 of Negotiable Instruments Act is a statutory presumption under Section 139 of NIA regarding legally enforceable debt and accused is entitled to rebut this presumption on preponderance of probabilities and by denying summoning of NCR, the courts below have effectively curtailed the petitioner's ability to establish prior hostility and absence of legally enforceable liability. He has submitted that right to defend is not illusory, it must be real and effective and denial of relevant defence evidence amounts to violation of Article 21 of Constitution of India. He has submitted that Section 311 Cr.P.C. empowers Court to summon any document or witness at any stage if it appears essential to the just decision of the case. He has submitted that the revisional Court has wrongly relied on the judgment passed in case of Sethuraman Vs. Raja Manickam (2000) 2 SCC Page 1. He has further submitted that considering these aspect the order passed by the learned JMFC dated 17.1.2026 which was confirmed by the revisional Court dated 20.2.2026 is erroneous and requires to be interfered with.

Counsel for respondent has opposed the petition by submitting that all these facts was in the knowledge of petitioner since the year 2022, even certain questions were also asked to the complainant in cross-examination by defence counsel in the NIA proceedings. He further submits that the court can exercise power under Section 311 of Cr.P.C. but it could not be considered that such power can be exercised to fill up the lacuna. He has submitted that both the courts below have given cogent and convincing reasons on the basis of material available on record and the facts of the case which are consonance with the provisions of law, more particularly, law regarding Section 311 of Cr.P.C. He has submitted that the learned revisional Court has rightly referred to the case of Sethuraman (supra). He has submitted that in fact the petitioner was aware about this factum since 2022 and has approached the Court at the fag end of trial that too after recording of evidence and both the Courts below have considered the conduct of petitioner as well as also material available on record. It is also recorded by the revisional Court in paras 6, 7 and 8 of the judgment that the complaint which is filed against the son of respondent Kamal is totally irrelevant and the proceedings regarding NCR under Section 155 Cr.P.C. are also irrelevant for consideration of the proceedings under Section 138 of NIA.Counsel for respondent in support of his submission has relied upon the judgment of Gujarat High Court in Special Criminal Appeal No. 8232/2018 and allied matters dated 31.08.2023 in the matter of Iqbal Ahmed Abdul Karim Khatri Vs. State of Gujarat and has submitted that no interference is required in the matter.

I have heard learned counsel for the parties at length and perused the record.

From bare perusal of the record it is prima facie found that the petitioner is having knowledge about the NCR proceedings in the year 2022. Thereafter he has participated in the proceedings under Negotiable Instruments Act. Not only that, it transpires that the petitioner has also cross-examined the complainant and has asked certain questions in his defence. Thereafter it transpires that the present application is filed under Section 311 of Cr.P.C. For this purpose, it is relevant to refer to the observations in case of Iqbal Ahmed Abdul Karim Khatri (supra) which are reproduced Here under below:-

7.1 I have considered the rival submissions made at the bar by the respective parties. I have also perused the application as well as impugned order passed by the trial court.

7.2.1 It is fruitful of refer Section 311 of the Criminal Procedure Code, as under:

"Section 311 in The Code Of Criminal Procedure, 1973:-

Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

7.2.3 It is also fruitful to refer Section 138 of the Negotiable Instruments Act, 1881, as under:

" Section 138 in the Negotiable Instruments Act, 1881:-

Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

7.2.4 It is also fruitful to refer Section 2 of the Power of Attorney Holder Act, 1882, as under:

"Section 2 in The Powers-of-attorney act, 1882:-

Execution under power-of-attorney.--The donee of a power-of-attorney may, if he thinks fit, execute or do any 3 [***] instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every 3 [***] instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force."

7.3 It becomes evident that the complaint is filed through the power of attorney holder under Section 138 of the N.I. Act. Further, the power-of-attorney holder has also deposed by way of affidavit, who was cross-examined by the defence. Thereafter, the matter is tested for three year and the stage of evidence to evidence further evidence is also closed by the trial court and matter is posed for recording further statement. It becomes evident that at this stage, the respondent No.2 - complainant has filed the application for opening his right with a view to lead his evidence. Once his power of attorney has already deposed before the trial court, normally, the Court should not permit the original complainant to depose as it is rightly contented by advocate for the petitioner that it amount to fill up the lacuna. 7.4.1 It is relevant to refer the judgment of the Hon'ble Apex Court in the case of Rajendra Prasad versus Narcotic Cell through its Officer In Charge, Delhi reported in (2019) 14 SCC 328, more particularly, paragraphs 6, 7 and 11 are relevant, as under:

"6. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case'. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage `to err is human' is the recognition-of the possibility of making mistakes to which humans are proved. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments, The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision, The steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down nor frowned at."

7.4.2 It is also relevant to refer the judgment of the Hon'ble Apex Court in the case of Vijay Kumar versus State of Uttar Pradesh, reported in (2011) 8 SCC 136, more particularly, paragraphs 7, 18 and 20 are relevant, as under:

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said Section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the Court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason.

The High Court failed to consider the case of the prosecution that the application was submitted by the respondent No. 2 only to delay the trial and no case was made out by the respondent No. 2 as to why direction should be given to examine Smt. Ruchi Saxena as a court witness. In a bribe case what is required to be proved by the prosecution is that there was a demand of bribe by the accused from the complainant and that pursuant to the said demand, bribe amount was accepted by the accused. To prove this case it was not necessary for the court to examine Smt. Ruchi Saxena as a court witness. Neither the respondent No. 2 in his application nor the court in the impugned judgment has specified the reason as to why and how examination of Smt. Ruchi Saxena as a court witness is necessary.

If this is the approach to be made while deciding application under Section 311 of the Code of Criminal Procedure, this Court fails to understand as to how the evidence of Smt. Ruchi Saxena was relevant in the instant case and why direction should be given to examine her as a court witness, as she was neither present at the time when the bribe was demanded or even at the time when the trap was arranged and laid. Without examining the relevance of evidence, which may be tendered by Smt. Ruchi Saxena or the necessity of examining her as a court witness or examining the question of prejudice if at all which is likely to be caused to the defence, if she is not examined, the High Court has directed the learned Special Judge to examine Smt. Ruchi Saxena as a court witness. There is no manner of doubt that the power under Section 311 of the Code of Criminal Procedure, 1973 is exercised arbitrarily and, therefore, the impugned judgment is liable to be set aside."

7.4.3 It is also relevant to refer the judgment of the Hon'ble Apex Court in the case of Swapan Kumar Chatterjee v. C.B.I. reported in (2019) 14 SCC 328, whereby the Hon'ble Apex Court has observed that such application cannot be considered at the belated stage, if it is filed with a view to filling the lacuna in the evidence produced by the parties concerned. 7.4.4 It is relevant to refer the judgment of this Court in the case of Naranbhai Dayaljibhai Savani versus State of Gujarat reported in 2019 (0) AIJEL-HC 243128, more particularly, paragraphs 4 & 9 are relevant, as under:

It appears that the petitioner (original accused) in various proceedings initiated under Section 138 of Negotiable Instrument Act moved applications under Section 311 of Code of Criminal Procedure for recalling of the witness viz. the complainant for further cross examination. Before, present petitions are considered on merits, it is a matter of fact that the petitioner has not responded to the notice issued by the original complainant before institution of proceedings under Negotiable Instruments Act. Further, the complainant has been cross examined at the hands of the petitioner at length.

According to the petitioner, there is no any due amount payable to the respondent - complainant in view of the fact that the respondent - complainant got registered documents from the petitioner's son in respect of three flats. Such aspect of the matter was not brought on record, despite the fact that the petitioner's advocate was informed and apprised about the said fact. In light of this position, the petitioner relieved his earlier advocate and engaged another advocate and therefore, the fact of registration of documents by the petitioner's son requires to be brought on record, so as to prove that there is no amount due and payable by the petitioner towards the disputed cheques.

Before the submissions made at bar are considered on its merits, it is necessary and relevant to reproduce observations made by the Hon'ble Apex Court in the case of Manju Devi v/s. State of Rajasthan and Anr. reported in 2019(2) Cri.CC 549, more particularly, para 9, which reads as under:-

"9. Section 311 CrPC reads as under:-

"311. Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case".

9.1. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions 1. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, R/SCR.A/7833/2019 ORDER though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:-

"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under Cr.P.C. or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties.

However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any Court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

Now coming to the facts of the present case, it appears that the petitioner has cross examined the complainant on the aspect of registration of documents with respect to three flats. In that view of the matter, subordinate courts below did not find any merit in the applications moved by the petitioner under section 311 of the Code of Criminal Procedure and more particularly on account of engagement of another advocate.

Apart from it, it is a matter of fact that the applications are not moved for further cross examination on account of subsequent development or finding any important and relevant material, which may be helpful for further cross examination of the complainant.

For the sake of repetition, it is required to be noted here that the petitioner has not responded to the notice issued by the complainant prior to institution of proceedings under section 138 of the Negotiable Instrument Act on the one hand and on the other hand, learned advocate for the petitioner has cross examined the respondent - complainant on the aspect of alleged registered sale deed and therefore, subordinate courts below and also this Court do not find any reason to exercise powers under section 311 of the Code of Criminal Procedure, as there is no escape of evidence with respect to registered sale deeds as stated at bar, at the time of cross examination of the respondent - complainant and therefore, present petitions being devoid of merits, both on law and facts are hereby rejected at admission stage."

7.4.5 It is also fruitful to refer the judgment of the Hon'ble Apex Court in the case of State versus N. Seenivasagan reported in (2021) 14 SCC 1, more particularly, paragraphs 12 and 13 are relevant, as under:

"12. In our view, having due regard to the nature and ambit of section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person "if his evidence appears to it to be essential to the just decision of the case". The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.

In Manju Devi v State of Rajasthan, a two-Judge bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that "the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness". Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:

It needs hardly any emphasis that the discretionary powers like those under section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions in Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case . Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily.

The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

***

The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (emphasis in original)"

7.5 Additionally, prima facie, considering the position of law and facts of the present case, the trial court has committed gross in allowing the application, which is filed at the stage of recording of further statement, and more particularly, when the power-of-attorney holder has already deposed and cross-examined. Thereafter, there is no purpose to permit the complainant himself to depose and filling the lacuna, which is after three year, his right is closed for adducing the evidence for adducing evidence. Therefore, the the present petition deserves to be allowed.

Accordingly, the present petitions are allowed.

The impugned order dated 13.8.2018 passed in the application below Exhibit 35 in Criminal Case No. 41533 of 2015 by the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Surat as well as consequential proceedings if any are quashed and set aside in Special Criminal Application No.8233 of 2018.

The impugned order dated 13.8.2018 passed in the application below Exhibit 39 in Criminal Case No. 41534 of 2015 by the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Surat as well as consequential proceedings if any are quashed and set aside in Special Criminal Application No.8232 of 2018.

The impugned order dated 13.8.2018 passed in the application below Exhibit 42 in Criminal Case No. 41525 of 2015 by the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Surat as well as consequential proceedings if any are quashed and set aside in Special Criminal Application No.8246 of 2018.

On going through the findings of the learned trial Court as well as the revisional Court which are in consonance with the material available on record and as per the law, I find no perversity or illegality in the findings given by both the Courts below. Otherwise also, this Court has very limited jurisdiction while considering the concurrent findings of facts of both the Court below.

In view of the above discussion, the MCRC being devoid of merits, is hereby dismissed.