The Himachal Pradesh High Court said that the object of Section 311 of the Criminal Procedure Code (CrPC) is to do substantial justice not only from the view point of the party but also to establish orderly society.

The Court said thus in a petition relating to a person who was the complainant in the criminal complaint and had preferred under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) which was pending adjudication before the Trial Magistrate.

A Single Bench of Justice Vivek Singh Thakur observed, “Power under Section 311 Cr.P.C. has been conferred upon the Court in order to enable it to find out truth and render just decision. The object and aim of the provision, as a whole, is to do substantial justice not only from the view point of the party but also to establish orderly society. Where the Court finds it essential to examined, re-examine, recall or call any witness, at any stage of inquiry/trial or other proceedings for rendering just decision in the case, this power can be exercised at any stage.”

Advocate Devender K. Sharma appeared for the petitioner while Advocate Pradeep K. Sharma appeared for the respondent.

Brief Facts -

The complainant had preferred two complaints, one against the respondent-accused and another against his father claiming that he had given Rs. 5 lakhs to the accused who was in dire need of money for business requirement. The cheques issued by the accused for repayment of the said amount were dishonoured. Accordingly, the second complaint alleged that the father of the accused borrowed Rs. 2 lakhs for domestic requirement and the cheque issued for the repayment of the same was also dishonoured.

The father of the accused was convicted by the Trial Court whereas the trial case of the accused was pending before the Magistrate. An application under Section 311 of Cr.PC. was preferred for leading additional evidence to re-examine the complainant and to lead additional evidence of the concerned banks. The said application was opposed by the complainant by filing reply to the application. However, the Magistrate allowed the application and hence, the complainant approached the High Court.

The High Court in the above regard noted, “In the Revision Petition as well as in present petition, main ground for opposing the application, filed under Section 311 Cr.P.C., is that the said application was filed at a belated stage only to linger on the trial. … Though it has been contended that proposed defence was not mentioned in the application filed by the accused under Section 145(2) of the NI Act for cross-examination of the witness, and no such plea with respect to the defence, proposed to be brought on record now, was pleaded or recorded, and that at this belated stage application of the respondent-accused was liable to be dismissed, however, no plausible ground against satisfaction of the Trial Magistrate, recorded in the order, with respect to necessity of additional evidence and recalling of complainant for re-cross-examination has been raised.”

The Court while considering the fact that the two cases are related to father and son said that there may be some link between the cases and therefore, the evidence would be necessary to be put to the complainant which should have been put by the Advocate during cross-examination but the same could not be done. Furthermore, the Court said that the Trial Magistrate has not committed any irregularity, illegality or perversity in the impugned order.

“The complainant-petitioner has failed to make out a case to rebut the satisfaction recorded by the Trial Magistrate with respect to necessity of allowing the application for just decision of the case”, added the Court.

Accordingly, the High Court dismissed the petition.

Cause Title- Gagnesh Thakur v. Vishal Awasthi (Neutral Citation: 2023:HHC:14323)

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