State Bank of Patiala vs Vijay Kumar

Surjit Singh, J.—Petitioner has filed a complaint, u/s 138 of Negotiable Instruments Act, against respondent Vijay Kumar. It is alleged that Vijay Kumar issued a cheque of Rs.75,516 in favour of the petitioner towards discharge of liability for the loan raised from it and that when the same was presented to the bankers of the respondent, it was returned with endorsement that funds in the account of the respondent were insufficient to honour the cheque. Thereafter, notice, as per requirement of law, was issued to the respondent and when there was no response, complaint was filed. After the complainant had adduced its evidence and even the statement of the respondent had been recorded, u/s 313 Code of Criminal Procedure., an application u/s 311 Code of Criminal Procedure was moved for recalling the Manager of the Petitioner-bank, to appear as witness for further cross-examination. Learned Magistrate dismissed the application. Revision was filed by the Respondent in the Court of Sessions Judge, who allowed that revision petition vide order dated 6.11.2009.Petitioner has challenged this order of the Sessions Judge.

I have heard learned Counsel for the Petitioner as also the Respondent.

Learned Counsel for the Petitioner submits that order passed on an application, u/s 311 Code of Criminal Procedure is not revisable, in view of bar contained in Section 397(2) Code of Criminal Procedure and, therefore, the order of learned Sessions Judge is liable to be set aside on this score alone. Proposition of law, advanced by learned Counsel for the Petitioner, may not be absolute. It will depend upon the facts and the circumstances of each case, whether an order, u/s 311 Code of Criminal Procedure, is revisable or not.

Section 311 Code of Criminal Procedure has two parts. First part says that any Court may, at any stage of inquiry, trial or other proceeding, 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. The second part says that the Court shall summon and examine or recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case. So far as the first part of this provision is concerned, order passed thereunder may not be subject to revision, in view of bar contained in Section 397(2) Code of Criminal Procedure, but if the order, rejecting prayer for recalling a witness, pertains to second part of Section 311 Code of Criminal Procedure, it will be revisable, u/s 397 Code of Criminal Procedure, reason being that such an order affects the rights of the party that made the application, because it will deprive such a party to have just decision of the case. Judicial precedents are on both sides. Even this Court in some cases has held that an order, u/s 311 Code of Criminal Procedure, being interlocutory in nature, is not revisable, while in some other cases it has been held that the order is revisable, as it affects the rights of a party.

Next submission made on behalf of the Petitioner is that in the application it is not disclosed as to on what point the Bank Manager, sought to be recalled, was to be re-examined. This submission carries a good deal of weight. Application does not disclose as to what is to be asked of the witness, sought to be recalled. Not only this, even this has not been stated that recall of the witness is essential for just decision of the case. Thus the application, which was moved by the Respondent, cannot be said to pertain to second part of Section 311 Code of Criminal Procedure and, therefore, the order passed by the Magistrate was not revisable.

For the foregoing reasons, the petition is allowed. Impugned order of the Sessions Judge is set aside and that of the Magistrate restored. Record of the trial Court be returned, alongwith a copy of this order. Parties are directed to appear before the trial Magistrate on 30th December, 2010.