TaxTMI 
TaxTMI 
2026 (3) TMI 1030
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....the learned ACMM dated 01.10.2019, whereby the Application under Section 311 Cr.P.C filed by the Income Tax Office for filing additional documents, was allowed. 2. The facts in brief are that a Search and Seizure operation was carried out by the Income Tax Authorities, at the residence and business offices of the Petitioner on 22.06.2016, under Section 131(1)(A) Income Tax Act. The statements of Petitioner were recorded under Section 132(4) Income Tax Act, though the statements were subsequently retracted by the Petitioner. 3. Based on the Search and Seizure conducted on 22.06.2016, the Respondent Income Tax Authorities initiated proceedings under Black Money Act, 2015. After conducting the investigations for a period of at least 24 months from June, 2016 till May, 2018, the Complaint under Section 200 Cr.P.C was filed on 31.05.2018 against the Petitioner for allegedly committing the offences under Section 51(1) read with Section 54 Black Money Act. As is evident from the Index of the Complaint, Annexures which included Annexure-F which was only of a single page, were filed along with the Complaint. 4. The cognizance on the Complaint, was taken on 05.09.2018 by the learned....
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....tional documents in a Complaint under Section 200 Cr.P.C. The Summoning Order therein having been passed on the Complaint without relevant supporting documents, was set aside and the Complaint was quashed in its entirety. 10. The learned ASJ and learned ACMM have failed to appreciate that at the time of issuing the summons, these documents were not on record and the learned ACMM did not take cognizance of the said documents. Therefore, they cannot be made part of the record subsequently, by taking refuge of an inadvertent error. 11. It is settled principle of law that a trial cannot be carried out and evidence cannot be lead on documents which were never taken cognizance of by the Magistrate, in the first place. Reliance is also placed on Sanjay Gambhir vs. State, 2017 (2) DLT (CRI) 898. 12. Even otherwise, the Application under Section 311 Cr.P.C was not maintainable, as this provision can be invoked only in case of oral testimony and not for producing additional documents, on record. 13. The word "Complaint" as defined in Section 2(d) Cr.P.C covenants all the allegations that the Complainant wants to bring to the notice of the learned Magistrate, and that does not lea....
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....uments on record, when the same were admittedly not filed along with the Complaint and at the time of taking cognizance. 19. Hence, a prayer is made that the impugned Order allowing the Application under Section 311 Cr.P.C to take additional documents on record be set aside. 20. The Respondent in its Reply has taken a Preliminary Objection that the present Petition under Section 482 Cr.P.C has been filed to challenge the Order dated 19.02.2021 of learned ASJ when in fact, it does not disclose any infirmity in upholding the Order of the learned ASJ dated 01.10.2019 allowing the Application 311 Cr.P.C. It was observed that no hardship or prejudice would be caused to the Petitioner, since he would have an opportunity to counter the documents at the stage of pre-Charge Evidence. The scope of Section 311 Cr.P.C has been correctly interpreted by the learned ACMM as well as learned ASJ. 21. The Respondent has relied upon V. N. Patil vs. K. Nirajanan Kumar & Ors., (2021) 3 SCC 661, wherein the scope of Section 311 Cr.P.C was explained. Reliance is also placed on Rajendera Prasad vs. Narcotic Cell, (1999) 6 SCC 110, wherein the Apex Court observed that oversight or mistakes during ....
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....s as stated in the Petition, have been raised. Submissions heard and record perused. 27. An Application under Section 311 Cr.P.C. was filed on behalf of the Respondent to place on record certain documents, which was specified in the 'Annexure F' annexed along with the Complaint, which was allowed by learned ACMM vide Order dated 01.10.2019, which was upheld by learned Additional Sessions Judge vide Order dated 19.02.2021. 28. The first contention raised on behalf of the Petitioner is that there is no provision analogous to Order VI Rule 17 of the Civil Procedure Code, 1903 (hereinafter referred to as "CPC") which permits amendment of the Complaint and Section 311 Cr.P.C. cannot be invoked to place on record additional documents which are highly prejudicial to the Petitioner, especially when they did not form part of the record at the time when he was summoned by the learned ACMM in the Complaint. 29. What thus, firstly needs to be considered is whether the amendment of the Complaint is permissible, under criminal jurisprudence and if yes, then under what circumstances. 30. There is no denying that there is no provision like Order VI Rule 17 CPC, in the Criminal Procedur....
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....the amendment Application is that the cognizance is taken of the offence and not the offender. 35. In the case of S.R. Sukumar, (supra) the Supreme Court noted that the amendment in the Complaint even if not formal but a substantial one, can still be allowed provided no cognizance was taken of the Complaint before the disposal of the amendment Application. It was held that since summons were yet to be ordered to be issued to the Accused, no prejudice would be caused to the Accused. Furthermore, such amendment to the Complaint did not change the original nature of the Complaint, being one of defamation. 36. It was re-enunciated in the case of Narayan vs. State of Maharashtra, (2014) 11 SCC 790, by the Apex Court that amendment can be denied, only if it deprives and causes serious prejudice to the accused. 37. What would amount to a substantive amendment in the Complaint, can be understood from the judgment of Sanjay Gambhir vs. State, 2017 SCC On Line Delhi 8331, wherein in a Complaint under 138 NI Act, where the name of two Petitioners who were the Directors, had not been impleaded as the Accused in the Complaint, was sought to be introduced by way of amendment. It was hel....
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....ily curable legal infirmity, with the rider that no prejudice is caused to the other side. 42. The contention of the Petitioner is that allowing the documents to be placed on record, tantamount to amendment of the Complaint itself, to the prejudice of the Petitioner. This argument is totally fallacious for the simple reason that there is no amendment sought of the Complaint, but only the Documents, which though mentioned in the Complaint, could not be filed earlier, along with it. Seeking to place on Record such documents cannot, by any stretch of interpretation, be termed as amendment of the Complaint. 43. The second and the pertinent question is whether these documents can be allowed to be placed on record, under the enabling Section 311 Cr.P.C. This Section confers wide discretion on the Court and is couched in widest terms; the only condition circumscribing this discretionary power is that it can be invoked only for the ends of justice. 44. The aim of every Court is to discover the truth. Section 311 Cr.P.C. is one of the many such provisions, which strengthens the arm of the Court in its effort to unearth the truth by procedure sanctioned by law. This Section gives am....
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....endance, though not summoned as a witness; or (iii) To recall or re-examine any person already examined. 48. The second part, which is mandatory, imposes an obligation on the Court to summon and examine or to recall/re-examine any such person, if its evidence appears to be essential for the just decision of the case. 49. In the case of Balwinder Singh vs. State of Punjab and Others, 2009 SCC OnLine P&H 11350, the Punjab and Haryana High Court while referring to the case of Jagdish, (supra) held that if proper evidence is not adduced or relevant material has not been brought on record due to inadvertence or oversight, the Court should permit such mistake to be rectified. The inadvertent omission on the part of the Prosecution, cannot be treated as a punishable lacuna which cannot be cured by the Court while exercising its power under Section 311 Cr.P.C. 50. The Supreme Court in the case of Godrej Pacific Tech, Limited vs. Computer Joint India Limited, 2008 (3) RCR (Criminal) 897 held that the Section 311 is not limited only for the benefit of the Accused, and it will not be an improper exercise of the powers by the Court to summon a witness under this Section merel....
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....e Accused which disclosed that the Company M/s Asia Field Limited vide Power of Attorney dated 05.02.2007 appended Deepak Talwar as its true and lawful Attorney to operate any Bank Account opened in the name of the Company with ING Asia Pvt. Bank Limited and to give the instructions for any facility granted by the Bank. It further detailed the scope of the Instructions which could be given by the Accused Deepak Talwar. 55. The other factors that also got disclosed were the KYC documents provided by the Bank of Singapore, Letter of Orange Field Trust Ltd., an instrument of trust, for creation of the Balajee Trust, Mauritius dated 24.04.2009, Deed of Removal dated 09.09.2014 vide which Depak Talwar was removed from the class of beneficiary under the Trust, Bank Account of Asia Field Limited and such details. 56. It was further averred in the paragraph 9 that all these documents received by FT&TR Division of CBDT were annexed as Annexure 7. 57. The perusal of the Annexure F also further shows that the details of all these documents along with their content, had been mentioned. It is not a case where there is anything new which is sought to be produced. It is only the document....