TaxTMI 
TaxTMI 
2023 (2) TMI 1287
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.... to produce this witness as well. Learned Spl. Judge (PC Act), CBI inter alia was of the view that the witness was intentionally playing hide and seek with the Court and cannot be permitted to misuse the process of the law. The CBI has challenged the impugned order dated 23.10.2022 primarily on the grounds that Mr. C. Edmonds Allen is a material witness and his testimony is necessary for adjudication of the dispute. 3. In the petition, CBI has stated that the learned Trial Court has failed to appreciate that the witness is very crucial for the decision of the case which is related to forgery and corruption in a cases where large public interests are involved. CBI stated that the jurisdiction under Section 311 Cr.P.C. was not properly exercised by the learned Spl. Judge (PC Act), CBI. 4. The Hon'ble Supreme Court vide order dated 04.01.2018 in SLP Crl. No(s) 9251-9252/2017, titled as Jagdish Tytler vs. CBI through Superintendent of Police, directed the Trial Court to complete the trial within the outer limit of one year. 5. Pursuant to the direction of the Supreme Court, the learned Trial Court, vide order dated 26.11.2018 noted that the summons were duly executed and served ....
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....e would be granted for the said purpose. 8. Respondent No. 1 has filed a detailed reply controverting the pleas taken by the CBI in the present petition. At the outset, it has been stated that the present petition is not maintainable in view of the directions of the Supreme Court to conclude the trial in one year vide order dated 04.01.2018. It has also been stated that since the CBI had never challenged the order dated 21.11.2018, therefore the same has attained finality. It has been stated that CBI has tried to create a fresh cause of action to open the Prosecution Evidence at a belated stage and the present petition has been filed by the CBI with the intention to further delay and prolong the matter. It has also been stated that the averments made by the CBI are bereft of any merit and the order passed by the learned Trial Court dated 23.10.2020 is well reasoned. It was stated on behalf of Respondent No. 1 that sufficient opportunities were given to the CBI to produce and examine Mr. C. Edmonds Allen and Mr. Gang Yong but the said witnesses have failed to appear before the learned Trial Court. Furthermore, it has been stated that even after the lapse of 8 years since the regist....
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....A-1 asked the Applicant to prepare some forged documents to defraud a European Union Investor, which the Applicant refused to do and told A-1 to deal directly with the investor and not to involve him in it. The applicant has stated that at the blunt refusal of the Applicant, A-1, threatened the Applicant both via email as well as telephonically to use his connections in India specifically with the CBI and implicate the Applicant in a false case by using his connections in the CBI as he was an approver for them. 10. The applicant has also stated that his statement was duly recorded by the Enforcement Directorate and he has always been willing to appear and present before the Court, therefore he has made a request for the recording of his deposition through video conferencing. It was stated that in fact, CBI had not taken appropriate steps and CBI was bound to pay for the travel and stay cost in compliance with Section 312 Cr.P.C. 11. Sh. Rajesh Kumar, learned counsel for the petitioner states that the examination of this witness is very vital and necessary for proper adjudication of the case. He submits that even the intervenor application of the witness reveals that he has been f....
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....the Accused persons u/s 313 Cr. P. C would be recorded again in view of the fresh testimony and the Respondents will then need to lead further defense evidence. He also submits that the witness i.e. Mr. C. Edmonds Allen was not present In India, nor was he part of any alleged meetings as alleged in the case of CBI and nor has he seen the forging or fabricating of any alleged letter. Moreover, he submits, the original alleged letter has not been produced before the learned Trial Court. Therefore in view of the same the testimony of the witness Mr. C. Edmonds Allen (not recorded) cannot be vital to the present case but is rather an attempt by CBI to delay the matter and fill the lacunas in the present case. He further submits that it is an admitted case that no money was received or transferred in to any account of the accused persons or into any account at the behest of the accused persons.. He also submits that the witness Mr. Gang Yound of M/s ZTE, who is the sole witness of alleged demand and part of the alleged meeting was never examined or traced by the CBI. He submits that CBI till date has not attempted to trace the said witness and even in the present petition the CBI does n....
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.... the advantage of it should be given to the accused in the trial of the case. Reliance has been placed upon Rajinder Prasad vs. Narcotic Cell: (1999) 6 SCC 110. 16. Learned senior counsel has also relied upon Swapan Kumar Chhatterjee vs. Central Bureau of Investigation: (2019) 14 SCC 328 wherein it was inter alia held as under: " 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 vide power under this Section to even recall witnesses for reexamination 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 ....
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.... India Pvt. Ltd. has been formed by Abhishek Verma. He will also proved that M/s. Ganton Limited, USA is owned by Abhishek Verma. 20. The plea of the respondents that this witness cannot be summoned merely because his statement under Section 161 Cr.P.C. has not been recorded is liable to be rejected. It is a settled proposition of law that the best available evidence should be brought before the Court to prove a fact or a point in an issue. In no circumstances, the parties can be deprived of producing such evidence. It has also repeatedly been held by the Courts that a trial is not a battle of wits and the ultimate quest of the Courts is to reach justice. It is a settled proposition that the courts should be magnanimous even in permitting mistakes to be cured on facts and circumstances of the case. 21. The object of Section 311 Cr.P.C is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. A bare reading of Section 311 would show that this section vests in the courts the power to summon any person as a witness or to recall ....
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....ties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case." In UT of Dadar and Nagar Haveli and Anr. case it was further inter-alia held: "Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. Chhaganlal Daga v. M. Sanjay Shaw where permission granted by the Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna. 15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resor....
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....an: (2019) 06 SCC 203 has inter alia held as under:- "14.2 The aforesaid relevant submissions of the appellant have also been ignored by the Trial Court as also by the High Court. For the purpose of dealing with such a prayer of the appellant the Trial Court could have, rather ought to have, taken guidance from the decisions of this Court including that in State of Maharashtra v. Praful B. Desai where this Court approved of the process of recording the evidence of a witness in the criminal trial through videoconferencing when the witness was found residing/situate in the United States of America but whose evidence was essential for the case set up by the prosecution. This Court observed, inter alia, as under: (SCC p.613, para 20) "20. Recording the evidence by video-conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour.....