Yatendra Singh Chaudhary vs State Bank Of India

This petition under Section 482 of CrPC has been preferred against the order dated 29/1/2020 passed by Judicial Magistrate First Class, Gwalior in

Criminal Case No.10082/2013.

The facts in short are that the respondent has filed a private complaint under Section 138 of Negotiable Instruments Act before the Court of Judicial

Magistrate First Class, Gwalior against the petitioner which is pending as Criminal Case No.10082/2013. The respondent produced himself as P.W.-1

and filed an affidavit under Section 145 of Negotiable Instruments Act as examination-in-chief and exhibited cheque in question as Ex.P-1. The

petitioner filed an application under Section 311 of CrPC before the trial Court for summoning the employee of the respondent-bank with documents in

his defence. Respondent-bank did not file any reply to the aforesaid application and submitted the arguments orally and prayed for the dismissal of the

application under Section 311 of the CrPC filed by the petitioner. After hearing both the parties, the trial Court dismissed the application under Section

311 of CrPC.

Learned counsel for the petitioner has submitted that the trial Court has dismissed the application filed by the petitioner in illegal and arbitrary

manner and against the settled principle of law. The trial Court did not consider the facts of the case that that defence of the petitioner/accused cannot

be denied to call the employee of the respondent-bank as his defence witness. He has further submitted that the rejection of application for

summoning the employee of the respondent-bank in his defence amounts to denial of fair trial. In support of his submission, learned counsel for the

petitioner has relied upon the judgment passed by the Apex Court in the case of Vijay Kumar vs. State of U.P. & Anr., [2011 (3) Crimes 147 (SC)].

Hence, prayed to allow this petition.

Learned counsel for the respondent has opposed the same and has submitted that the trial Court has rightly rejected the application filed by the

petitioner under Section 311 of the CrPC. Hence, prayed to reject the petition.

Heard learned counsel for the parties and perused the documents available on record.

Section 311 of CrPC runs 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.â€​

The Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar [(2013) 4 SCC 461 has laid down following principles:-

“(a). Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the

court for a just decision of a case?

(b). The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and

speculative presentation of facts, as thereby the ends of justice would be defeated.

(c). If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-

examine any such person.

(d). The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which

will lead to a just and correct decision of the case.

(e). The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that

the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

(f). The wide discretionary power should be exercised judiciously and not arbitrarily.

(g). The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just

decision of the case.

(h). The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

(i). The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because

there would be a failure of justice without such evidence being considered.

(j). Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial

can be foreclosed from correcting errors and that 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.

(k). The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest

manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against

possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to

undesirable results.

(l). The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

(m). The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an

opportunity of rebuttal is given to the other party.

(n). The power 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society

and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.â€​

In the present case, it is apparent from the record that the petitioner had not established that for which purpose he wanted to summon the employee

of the respondent-Bank. It had also not been stated by the petitioner that which bank document he wanted to summon. The petitioner had also not

established the essentiality of the respondent-bank employee and document to be summoned to prove his defence. Therefore, the trial Court has

rightly rejected the application of the applicant lacking the reasonable cause for calling the witness as well as documents.

In view of the aforesaid discussion as well as the principles laid down by the Supreme Court in the case of Rajaram Prasad Yadav (supra), this

present petition is dismissed being devoid of merit.

Let a copy of the order be sent to the trial Court concerned for information.

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