TaxTMI 
TaxTMI 
2024 (1) TMI 438
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....of complaint is that the petitioner was carrying on its business of mining of granites. The opposite party no. 2 approached the petitioner to provide her with financial assistance for the purpose of expanding her business, which she carried on with her other family members. The petitioner, in good faith, provided financial assistance to the Opposite Party No. 2 from time to time. The opposite party no. 2, in partial discharge of her existing debts and/or liabilities, issued to the petitioner, an account payee cheque bearing no. 713379 dated 10.11.2008, drawn on Axis Bank Limited, Burra Bazar, for a sum of Rs. 2,00,00,000/- (Two Crore Rupees only), which, upon being deposited for encashment by the petitioner with its banker within its validity period was returned unpaid vide cheque return memo dated 04.05.2009, being dishonoured by the banker of the Opposite Party No. 2 for the reason "Funds Insufficient". A demand notice dated 19.05.2009, in terms with Section 138 of the Negotiable Instruments Act, 1881, was issued by the petitioner and the same was received by the opposite party no. 2 herein on 21.05.2009, but was not replied thereto. 4. It is further submitted that the petitio....
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....06 and 2006-07 along with enclosures (15 sheets). 7. It is stated that during the deposition of the sole defence witness, being Defence Witness No. 1 (hereinafter referred to as DW 1), i.e., the opposite party no. 2 herein, in the course of her examination in chief, tendered a certified copy of the said seizure list which was marked Exhibit A/3. 8. That the said DW 1/opposite party no. 2, in the course of her cross examination in connection with the instant case, sought to make out a case to the effect that in view of Entry No. 7 of the aforementioned seizure list, it would be evident that it is the CBI which had seized the cheque in question, i.e., cheque bearing no. 713379 dated 10.11.2018, and that as such she had never handed over the said cheque to the petitioner. 9. It is the specific case of the petitioner that the cheque in question was never seized by the CBI and that same would be evident upon a bare perusal of Entry Nos. 15 & 16 of the aforementioned seizure list dated 04.04.2009, wherefrom it can be seen that the CBI, vide the very same seizure list, had proceeded to seize signed Cheques bearing nos. 713386, 713344, 713331 and 713334, i.e., Cheques bearing nos.....
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....d 04.04.2009. Accordingly, copies of the said documents appearing at item nos. 3, 7, 15, 16 and 20 of the aforementioned seizure list dated 04.04.2009, were supplied to the above named Vivek Gupta on 17.03.2022, under the cover of a detailed covering letter dated 14.03.2022, issued by the Malkhana Officer, Central Bureau of Investigation, Bank Securities and Fraud, Kolkata and also bearing his signature and stamp. 12. It is also submitted by the petitioner that a bare perusal of the contents of the copy of the said seized cheque book, as supplied to the above- named Vivek Gupta by the CBI, would reflect that the cheque no. 713379 dated 10.11.2008 had never been seized by the C.B.I, as was contended by the Opposite party No. 2 in her deposition as DW1. 13. It is further stated the said Income Tax Return, as seized by the CBI, and a copy of which was supplied to the abovenamed Director of Kali International Pvt Ltd, would show that the set of Balance Sheets expected to accompany the aforementioned Income Tax Return was not seized by the CBI by way of the said seizure list dated 04.04.2009, even though the set of balance sheets for and/or in connection with other Financial Years....
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....already fixed for argument since 21.04.2021, there was no necessity to exercise the Learned Court's discretion under Section 311 of the said Code in order to recall PW1 for exhibiting the documents as prayed for. 18. Hence the revision. 19. The opposite party no. 2 in her affidavit in opposition has made out a case that the following documents are to be considered or she would suffer grave prejudice:- i) Photocopies of the relevant order from the date 12.08.10 to 06.04.23 passed before the Court of Learned Metropolitan Magistrate, 14th Court. ii) Photocopy of deposition of DW-1 dated 13.03.14. iii) Photocopy of the relevant portion of balance sheet and profit and loss statement of the Complainant collectively marked as Exhibit-2 in the Complaint Case No. 34911 of 2009 before the Learned Court of 14th Metropolitan Magistrate. iv) Photocopies of the order and judgment passed by the Learned Court of Metropolitan Magistrate 20th Court dated 31.10.14 in Complaint case No. C-34909 of 2009 and 34910 of 2009. v) Photocopy of the order and judgment passed by the Honourable High Court dated 06.12.21 in C.R.A. No. 424 of 2017, CRA 425 of ....
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....onjoint reading of Section 311 of Cr.P.C. and Section 138 of the Indian Evidence Act, it is clear that petition under Section 311 Cr.P.C. cannot be allowed to destroy the defence case." ii. From the copy of the seizure list dated 04.04.2009, the following entry in the said seizure list is relevant in this case:- "Entry No. 7: One cheque book of CA No. 277010200019761 of Axis Bank, Bara Bazar Branch held in the name of Kavita Saraff, containing cheques starting from 713317 to 713318, all signed by Kavita Saraff and issued in the name of Motilal Oswal Security Ltd., Krishna Smelters Pvt. Ltd., Bineet Saraff and Kali International." iii. At this stage, the cross examination of D.W. 1 resumed on 26.10.2017 in C/34911/09 before the learned Court of 14th Metropolitan Magistrate becomes relevant. Exhibit 8 was shown to the witness, who is the opposite party no. 2 herein. The witness has deposed as follows:- "Exhibit- 8 is shown to the witness and on perusal of Exhibit-8 the witness stated that it appears from the documents that:- Serial No. Cheque No. Date of honoured Amounting to Rs. In favour of 1 713320 27.06.08 50....
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....l Oswal Securities Ltd 36 713371 10.10.08 50,00,000/- Motilal Oswal Securities Ltd 37 713373 11.10.08 1,00,00,000/- Motilal Oswal Securities Ltd. 38 713375 20.10.08 1,50,00,000/- UTIBH082940 06674-RTGS- KAVITA SARAFE 39 713385 03.11.08 1,00,00,000/- Rajco Steel Enterprises 40 713387 05.11.08 50,00,000/- Rajco Steel Enterprises 41 713376 05.11.08 2,00,00,000/- Kali International Pvt. Ltd. 42 713377 06.11.08 2,00,00,000/- Kali International Pvt. Ltd. The C.B.I raid was conducted at the office of my husband on 04.04.09 and as per the documents all those cheques were honoured before the CBI raid." iv. All these 43 cheques (duly honoured) barring serial no. 3, were part of the same cheque book as the one containing the cheque in the present case being no. 713379 dated 10.11.2008. v. The witness (DW 1), the opposite party no. 2 herein has stated on oath that:- "....as per the documents all those cheques were honoured before the CBI raid". So admittedly these cheques were not part of the cheque book at the time of seizure thus negating....
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....ourt. The first part of the statutory provision is discretionary while the latter part is obligatory. 34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed: "16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision - either discretionary or mandatory - depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice." 35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage a....
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....the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. * * * * * 43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: "28. The cour....
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....lowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: "11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision." 49. The Court is vested wit....
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....e of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (emphasis supplied) 51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that: "44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. :....
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....ry trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so- called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts - coram non judis and non est. There is, therefore, every justification to call for interference in these appeals." 26. In the present case, the documents sought to be brought on record by the petitioner by way of additional evidence are documents "essential" and thus relevant for arriving at a just decision in the case. The prayer under Section 311 Cr.P.C. has been made in this case as soon as the documents were made available to the petitioner and the same are essential to aid in the discovery of truth. The documents in this case are necessary only with the object of proper proof of relevant facts in order to meet the requirement of justice. The reason for not being able to bring the present materials on record at the relevant stage has been satisfactorily explained and as such the Trial Court should have allowed the prayer under Section 311 Cr.P.C., considering the materials on record....