TaxTMI 
TaxTMI 
2025 (8) TMI 484
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.... CRL.M.C. 5173/2025, CRL.M.A. 22361/2025 (stay) CRL.M.C. 5096/2025, CRL.M.A. 22031/2025 (stay) 3. Criminal Miscellaneous Petitions under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'B.N.S.S.') read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') have been filed on behalf of the Petitioner, to challenge the Order dated 21.07.2025 of the learned JMFC-04 (NIACT), New Delhi, in Complaint Case bearing CT Case No. 5807/2019; CT Case No. 5808/2019; CT Case No. 5809/2019; CT Case No. 5810/2019 and CT. Case No. 5811/2019 under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as 'N.I. Act') vide which his Application under Section 311 of Cr.PC, has been dismissed. 4. Brief facts are that the Complainant had filed the aforesaid five Complaints under Section 138 of N.I. Act against the Respondent, in regard to the dishonour of five cheques, for Rs. 5,00,000/- each issued by the Respondent to the Petitioner/Company in discharge of its legal liability. The Respondent was summoned and thereafter, Notice under Section 251 Cr.P.C. was framed. Thereafter, respective parties ha....
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.... from the Postal Department appeared before the learned JMFC, he stated that the relevant record has been weeded out by the concerned Department. 11. Thereafter, the Petitioner/Complainant filed the Third Application under Section 311 Cr.P.C. for placing on record the Certificate under Section 65B of the Indian Evidence Act (hereinafter referred to as 'IEA') in respect of the Tracking Report, which could not be filed at the time of filing of the Complaint, due to inadvertence. The copy of the said Certificate under Section 65B of IEA was filed along with the Application under Section 311 Cr.PC. The Reply dated 05.07.2025 to the Application under Section 311 Cr.PC was filed by the Respondent. 12. The third Application under S.311Cr.P.C. got dismissed by the learned Trial Court vide Order dated 21.07.2025. 13. Aggrieved by the said Order, it has been challenged on the grounds that the learned Trial Court has committed grave error of law, which has resulted in miscarriage of justice to the Petitioner. It is claimed that the Judgment by this Court in the case of Ram Kishan vs. Emaar MGF Construction Pvt. Ltd., (2024) SCC OnLine Delhi 4443, has been ignored wherein it was obser....
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.... 18. The final arguments were addressed by both the parties wherein the Respondent had argued about the Notice not proved to be served through the Tracking Report as it was not supported by the Certificate under Section 65B IEA. The matter after being heard, was listed for 05.06.2025 for clarification/Judgment. It is at this stage that the present Application under Section 311 Cr.P.C. was filed by the Petitioner. It is evident that it was only intended to fill-up the lacunae in the evidence of the Complainant in the light of final arguments addressed by the Respondent. Moreover, in the original list of witnesses as well, there were these two witnesses, which were cited by the Complainant but he in his own wisdom had dropped and not choosen to be examined. 19. The stand of the Respondent was evident all throughout the trial. Even if there was a contradiction in the Statement under Section 313 Cr.P.C. and in the testimony as DW-1, it was well within the knowledge of the Complainant and there was nothing that prevented the Complainant to have moved the Application at the earliest. The very fact that this Application has been moved after conclusion of final arguments, the Applicatio....
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....emphasised that non-production of a Certificate under Section 65B of IEA on earlier occasion, is a curable defect. The reference was also made to Arjun Panditrao Khotkar (supra) wherein it was observed that so long as the hearing in a trial is not over, the requisite Certificate can be directed to be produced at any stage so that the information contained in electronic record Form can then be admitted and relied upon in evidence. 23. Insofar as the proposition of law is concerned, it is well-settled that the Certificate under Section 65B of IEA is only a procedural requirement and that the same can be allowed to be taken till the trial is not over. 24. It may however, be noted that the provisions of Cr.P.C. are intended for benefit of both the parties and cannot be interpreted differentially for the Complainant or the Accused. 25. The present controversy of filing of the Certificate under Section 65B of IEA, has arisen in the context of a Complaint under Section 138 of the N.I. Act, which though is essentially a dispute of civil nature but in order to enhance the efficacy of the negotiable instruments, Section 138 has been added to add criminality to dishonour of cheques o....
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....tion under Section 311 has been prompted only after the final arguments were addressed and the legal lacunae in the case of the Complainant, was pointed out. It is not as if the Complainant was not aware since the commencement of his Complaint that the Tracking Report was required to be supported by a Certificate under Section 65B of IEA. Pertinently, the Tracking Report has also not been proved and exhibited but is only a Marked document. 32. It is evident that this Application under Section 311 Cr.P.C. filed after the conclusion of final arguments by the Respondent, is only an endeavour to fill-up the lacunae which have been pointed out during the arguments addressed by the Respondent. 33. Though, it is well-settled that the procedures cannot be read so as to deny substantive justice between the parties or to bring on record the relevant evidence, but at the same time, procedures cannot be invoked to work to the disadvantage of one party. In this context, it is pertinent to observe that the Complainant all throughout was conscious of the admissions made by the Respondent in regard to the service of legal Notice and had thought in its wisdom to be sufficient to prove the ser....