Section 138 NI Act: death of complainnat- Effect ON COMPLAINT

It is necessary to deal with yet another aspect in respect of prosecuting the complaint u/s 138 of Negotiable Instruments Act i.e in case of death of the complainant what will be the effect on such complaint-whether the same could still be prosecuted or the complaint shall abate. It is no res integra that in case of death of accused the complaint shall abate, but what will be the situation in case of death of the complainant. The answer to the aforesaid aspect shall be found herein2004 SCC OnLine Gau 130 and captioned as Kushal Kumar Talukdar Versus Chandra Pd. Goenka 2005 CRILJ599 may be referred to.

The moot point is that in a case under Section 138 of the Negotiable Instruments Act, 1881, if the complainant dies after taking of congnisance by the Magistrate, whether the proceedings abate or trial has to be taken to its logical end, following due process and the procedure laid down in Criminal Procedure Code. It is worthwhile to mention that there is no provision in the Code of Criminal Procedure or the Negotiable Instruments Act laying down that on account of death of payee, the trial must abate. Therefore, it is to be ascertained, if the legal heirs of the original complainant are entitled to come forward and ask for allowing them to represent the complainant, so as to enable the Court to proceed further with the trial.

There is no provision for substitution of a deceased complainant under the Cr. P.C. either, but a Magistrate has the power under Section 302 of Cr. P.C., to permit any one to conduct prosecution. In Kushal Kumar Talukdar (Supra), Son of the deceased complainant, came forward to continue to proceed with the complaint and after finding that there was no impediment on the part of the Court, in allowing the Son of the deceased complainant to represent the complainant, the substitution application was allowed. A challenge was made to the substitution order and it was prayed that the complaint u/s 138 of Negotiable Instruments Act stood abated.

The question, in this context as often been raised by the accused-petitioner is this:

Whether the impugned order substituting the opposite party herein, who is the son of the said deceased, as complainant, in the complaint case aforementioned, which arose out of a complaint lodged for prosecution of the accused-petitioner under Section 138, read with Section 142 of the N.I. Act, is legally sustainable under Section 256 of the Code of Criminal Procedure?

As divergent views were being expressed by the High Courts on the question as to whether a complainant's death brings a complete end to the proceedings in a summons procedure case, the Law Commission, in its 41^st Report, had recommended as follows:

“A question has arisen whether the complainant's death ends the proceedings in a summons case and we find that different views have been expressed on this question. As a matter of policy, we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable

However, notwithstanding the above recommendations, Section 256, which finally emerged under the Code of Criminal Procedure, 1973, reads as follows: “256. Non-appearance or death of complainant. —

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

From a bare reading of Section 256, it clearly transpires that Section 256, same as Section 247, comes into play after cognizance has been taken by the Magistrate and summons has already been issued to the accused. Hence, Section 256 does not apply to a case in which the complainant dies before cognizance is taken and the summons is issued.

A careful reading of Section 256, as it stands in the Code of Criminal Procedure, 1973, makes it clear that this Section deals with the consequences of the absence of the complainant on account of his death as well as on account of any other reason. However, before answering the question as to whether the death of the complainant will bring a complete end to the trial of an accused in a summons case and force the Magistrate to acquit; him and/or the question as to whether the Magistrate has the power to allow the deceased complainant to be substituted or represented by anyone it is of immense importance to not that it is sub-section (2) of Section 256, which makes provisions for application of the provisions of sub-section (1) of Section 256 to the cases of none-appearance of the complainant on account of his death. Hence, before entering into the discussion of the scope of sub-section (2) of Section 256 and as to what it really lays down it is imperative, for the purpose of better appreciation of the scope and ambit of Section 256, to consider as to what sub-section (1) of Section 256 and the proviso that Sub-section (1) of Section 256 has undergone in the Code of Criminal Procedure, 1973, from what Section 247 of the Code of Criminal Procedure, 1809 had envisaged.

What is to be ascertained is as to whether the death of the complainant will bring end to the trial of an accused in a summons case and force the Magistrate to acquit; him and/or the Magistrate indeed has the power to allow the deceased complainant to be substituted or represented by anyone? Section 256 (2), makes provisions for application of the provisions of sub-section (1) of Section 256 to the cases of none-appearance of the complainant on account of his death. In order to appreciate the scope and ambit of Section 256, it is to be noted that what changes sub-section (1) of Section 256 and the proviso that Sub-section (1) of Section 256 has undergone in the Code of Criminal Procedure, 1973, from what Section 247 of the Code of Criminal Procedure, 1809 had envisaged.

A composite reading of the provisions of Section 247 vis-a-vis Section 256, reveals that if the summons had been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto, to which the hearing might have been adjourned, accused could be acquitted, unless, for some reason, he thought proper to adjourn the hearing of the case some other day.

However, while the provision to Section 247, as the same stood after the Amendment Act 26 of 1955, vested a discretion in the Magistrate to dispense with personal attendance of the complainant and proceed with the case if the Magistrate was of the opinion that the personal attendance of the complainant was not necessary the proviso to Section 250(1) has further widened the scope of the exercise of the proviso to Section 256(1) has now made possible for the Magistrate to dispense with the personal attendance of the complainant and proceed with the trial not only when, in the opinion of the Magistrate, the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

What emerges, therefore, is that initially, the proviso to Section 247, as it stood in Code of Criminal Procedure, 1809, vested in the Magistrate the discretion to dispense with the personal attendance of the complainant only when the complainant was a public servant and the Magistrate was of the opinion that the personal attendance of the public servant was not required. The proviso to Section 247, as amended in the year 1955, widened the, scope of this discretion of the Magistrate to dispense with the personal attendance of the complainant by laying down to the effect that the Magistrate can dispense with the personal attendance of the complainant irrespective of the fact as to whether the complainant was a public servant or not, the only limitation, however, being that the Magistrate had to form an opinion, before exercising such discretion, that in the facts and circumstances of the case, personal attendance of the complainant was not necessary. The proviso to Section 256(1) has further widened the discretion so vested in the Magistrate by making it clear that the Magistrate can dispense with the personal attendance of the complainant and proceed with the trial not only when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

Another question that may arise is this:    

Is there any difference between the summons triable case, wherein the complainant is represented by a pleader, and a summons triable case, wherein the complainant is represented by an officer conducting the prosecution?

Section 2(q) Cr. P.C. defines the word “pleader” when used with reference to any proceeding in any Court, means a person authorised by or under any law, for the time being in force, to practise in such     Court, and includes, any other person appointed with the permission of the Court to act in such proceeding.

A close reading of Section 2(q) Cr. P.C. shall reflect that the pleader means a person, who is authorised, by or under any law, to practise as an advocate and includes a person appointed with the permission of the Court to act in such proceeding. Section 24 read with Section 25 Cr. P.C. relates to appointment of Public Prosecutors, Addl. Public Prosecutors and Asstt. Public Prosecutors. Section 24 (1) makes it clear that the appointment of Public Prosecutors and Addl. Public Prosecutors is for conducting prosecution, appeal, etc. Section 25(1) makes it clear that the appointment of Assistant Public Prosecutors is “for conducting prosecution in the Court of Magistrates”. This apart, Section 301 Cr. P.C. shows that though any private person may instruct a pleader to prosecute any person in any Court, yet it is the Public Prosecutor or Assistant Public Prosecutor, who remains in charge of the case and responsible for conducting the prosecution, and the pleader, so instructed, by a private person, acts under the directions of the Prosecutor. Coupled with this, Section 301 Cr. P.C. shows that the Public Prosecutor or Assistant Public Prosecutor, in charge of a case, may appear and plead without any authority before the Court in which the trial or appeal is pending. Though, Section 302 Cr. P.C. empowers Magistrates to permit any person to conduct prosecution, the fact remains that if a person comes forward to conduct prosecution as a pleader appointed by the complainant, his appointment as a pleader must subsist on the day, when he is to be permitted to appear as a pleader of the complainant.

Thus, as per the scheme of the Code of Criminal Procedure, there is a difference between a pleader, appointed by a private person, and a person, who is appointed, in terms of Section 24 /25 Cr. P.C., as a Prosecutor by the State or the Central Government for conducting the prosecution in a given case. Keeping in mind that, if proviso to Section 256(1), is reverted to, it becomes abundantly clear that this proviso relates to both the contingencies, namely, when a complainant is represented by a pleader and also when a complainant is represented by an officer conducting the prosecution. The former indicates that the complainant, who lodged the complaint, is a private individual and is represented by his own advocate, the latter shows that the complaint has been lodged in terms of Section 190(1)(a) read with Clause (a) of the first proviso, to Section 200 of the Cr. P.C. and is conducted by an officer conducting prosecution.

What emanates from the above discussion, as a whole, is that initially, the proviso to Section 247, as it stood in Code of Criminal Procedure, 1809, vested in the Magistrate the discretion to dispense with the personal attendance of the complainant only when the complainant was a public servant and the Magistrate was of the opinion that the personal attendance of the public servant was not required. The proviso to Section 247, as amended in the year 1955, widened the, scope of this discretion of the Magistrate to dispense with the personal attendance of the complainant by laying down to the effect that the Magistrate can dispense with the personal attendance of the complainant irrespective of the fact as to whether the complainant was a public servant or not, the only limitation, however, being that the Magistrate had to form an opinion, before exercising such discretion, that in the facts and circumstances of the case, personal attendance of the complainant was not necessary. The proviso to Section 256(1) has further widened the discretion so vested in the Magistrate by making it clear that the Magistrate can dispense with the personal attendance of the complainant and proceed with the trial not only when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

Section 190 Cr. P.C. a Magistrate may take cognizance of any offence –

(a) upon receiving a complaint of facts, which constitute such offence,

(b) upon a police report of such facts,

(c) upon information received from any person other than a police officer or, upon his own knowledge, that such offence has been committed.

However, when the complaint has been lodged by a public servant acting or purporting to act in the discharge of his official duty, the Magistrate, taking cognizance of the offence on such a complaint, need not, in terms of Clause (a) of the first proviso to Section 200 Cr. P.C., examine the complainant and the witnesses, nor is there any necessity of holding, in terms of Section 202 Cr. P.C., an enquiry for the purpose of taking a decision as to whether process can be issued to the accused, provided, of course, that the Magistrate is, otherwise, satisfied that the contents of the complaint disclose commission of offence.

As per Sub-section (2) of Section 256, it merely states that the provisions of sub-section (1) of Section 256 shall, so far as may be, apply also to the case, where the non-appearance of the complainant is due to his death. The question, therefore, is as to how far the provisions of sub-section (1) of Section 256 and the proviso thereto can be applied to a case, where the complainant is absent on account of his death and how far sub-section (2) of Section 256 differ, in this regard from sub-section (1) of Section 256?

It is worth noticing that the expression “so far as may be”, occurring in sub-section (2) of Section 256, is of immense significance as the provisions of sub-section (1) of Section 256 including the proviso thereto, lay down the various conditions in which the absence of the complainant, on account of reasons other than his death, may not ipso facto result into acquittal of the accused, shall be applied, to the extent possible, even when the complainant's absence is on account of his death. In other words, the provisions of Section 256(1) and the proviso thereto do not apply, in their entirety, to a case, where the complainant, in a summons case, dies after the summons has been issued to the accused.

While considering the question as to how far sub-section (2) of Section 256 differs from Sub-section (1) of section 256, it is of utmost importance to note that one of the powers, which the proviso to sub-section (1) of Section 256 gives to the Magistrate is the power to dispense with the personal attendance of the complainant and proceed with the case if the complainant is represented by a pleader or by an officer conducting the prosecution?

The question, therefore, which, now, arises is this: If the absence of the complainant is on account of his death, can the Magistrate allow the summons case to proceed merely on the ground that the deceased complainant is represented by his pleader or by an officer conducting the prosecution? In order to correctly appreciate the question as to whether a pleader appointed by a complainant, in a summons triable case, can continue to represent the deceased complainant as the deceased complainant's pleader, one has to understand the nature of the relationship between a party and his pleader.

While considering the above aspect of the matter, it is of paramount importance to note that the appointment of a pleader by a person is contractual in nature. The appointment of a pleader by a party is essentially appointment of an attorney and the vakalatnama is nothing, but a power of attorney or an authority to represent the party concerned, who may even be a complainant in a criminal case whether the appointment of the pleader is in a criminal case or in a civil case is immaterial. Reference in this regard may be have to the decision in Ramdeo Trilokchand Agarwal v. Lalu Natha, 502 AIR 1937 Nagpur 65, wherein Mysore High Court, while dealing with vakalatnama, observed and held as follows:

“In Stroud's Judicial Dictionary, “power of attorney” is defined as: An authority, whereby one “is set in: the tune, stead or place of another” to act for him. In India, under the Stamp Act S. 2(21), a power of attorney, for the purposes of the Stamp Act, is defined in a way that excludes a vakalatnama, because it excludes a document, which carries a court-fee stamp, but that definition, for the purposes of the Stamp Act, in my opinion, makes it quite clear that if it were not for that definition, a vakalatnama being a power of attorney, would require not only a court fee stamp under the Court fees Act, but also a stamp under the Stamp Act and to avoid that double stamp, it was necessary in the Stamp Act to exclude the vakalatnama.”

The fact remains that the appointment of a pleader by a person is contractual in nature, and the fact that it is so recognised by Legislature is evident from a bare reading of Order 22, Rule 10A of the CPC, which lays down as follows:

“10A. Duty of a pleader to communicate to Court death of a party. —

Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and for this purpose, the contract between a pleader and the deceased party shall be deemed to subsist.”

Thus, in a civil case, a pleader's appointment ends on the death of the person, who appointed him except to the extent as Order 22, Rule 10A of the Code of Civil Procedure specifically permits. Therefore, when the appellant dies during pendency of even a civil appeal, the power given by him to his pleader comes to an end and ceases to be in force. The only exception, however, is what Order 22, Rule 10A of the CPC provides for, namely, that the contract between the pleader and the deceased party “shall be deemed to subsist” only for the purpose of informing the Court that the party represented by him has died. Thus, the appointment of a pleader by a private person is nothing, but a kind of contract and this contract ends with the death of the ‘person’, who had appointed the pleader.

In criminal cases too, same as in the civil cases, the relationship of the complainant with his pleader as the client of the latter comes to an end on the death of the complainant. Hence, when the complainant dies, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased complainant.

In Kushal Kumar Talukdar (Supra) it is held as under:

40. In short, a careful reading of sub-section (2) of Section 256 shows that when the complainant dies, the pleader, appointed by-the complainant, ceases to be pleader of the complainant and cannot be allowed to represent the complainant, whereas an officer conducting the prosecution of the case based on the complaint lodged by a public servant, continues as an officer conducting the prosecution, notwithstanding the death of the public servant as complainant can, therefore, be allowed to continue to conduct the prosecution.

41. In other words, after the summons in a complaint case has been issued, then, on the day appointed for the appearance of the accused or on any day subsequent thereto to which hearing may be adjourned, the complainant does not appear, on account of his death, the Magistrate cannot proceed with the case merely on the ground that the pleader appointed by the complainant is present to represent the complainant. However, if the complainant is represented by an officer conducting the prosecution or if the nature of the complaint is such that the personal appearance of the complainant is not necessary, the Magistrate may proceed with the case subject to what have been mentioned hereinabove.

42. Hence, when sub-section (2) of Section 256 is read, in the light of the proviso to Section 256(1), it becomes abundantly clear that even when the absence of the, complainant is due to his death, the Magistrate may still proceed with the case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary or when the complainant is represented by an officer conducting the prosecution. If the Magistrate dispenses with personal attendance of the deceased complainant on the ground that his presence is not necessary, the Magistrate may permit ‘any person’ to conduct the prosecution. I am guided to adopt this view from the decision in Ashwin Nanu Bhai Vyas v. State of Maharashtra, 1967 Cri. LJ 943 (SC).

The following inference in Kushal Kumar Talukdar (Supra) is worth noting:

“44. From what has been pointed out by the Apex Court in Ashwin Nanu Bhai Vyas (supra), it is clear that though there is no provision for substitution, Section 302(1), which has, now, replaced Section 495 Cr. P.C., empowers the Court to authorise the conduct of prosecution by any person and the word “any person” would include the son of the complainant in a case of present nature. The accused-opposite party herein, being the son of the complainant stands on the footing of “any person” as envisaged by Section 302(1) Cr. P.C. As correctly observed in Raviselvam v. Nilini Vijaya Kumar, reported in 1999 (4) Crimes 209, the endeavour must be to do justice and not to take advantage or technicalities. The urge to resort to easy way out must give way to judicial justness.

45. On an examination of all the relevant provisions of the Criminal Procedure Code, the proposition that criminal proceedings abate on the death of the complainant appears to be legally unfounded and unacceptable. Criminal proceedings, legally instituted, do not terminate or abate merely on the death of the complainant. The cause of action for civil action bears no analogy to complaints of crime. The object of Section 256 Cr. P.C. is succinctly explained by the Apex Court in Associated Cement Co. Ltd. v. Keshvanand, reported in 1998 Cri. LJ 856 (SC), in the following words:

“17. What was the purpose of including a provision like Section 247 in the old Code (or S. 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent. Court has a duty to acquit the accused in invitum.

18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned, the Court is free to dismiss the complaint and acquit, the accused. But if the presence of the complainant on that day was quite unnecessary, then, resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

The Delhi High Court in Om Saran v. Mrs. Satya Dhawan, reported in 1990 Cri. L.J. 1619, has laid down that the Legislature has vested a discretion in the Magistrate to decide, keeping in view the facts of each case, as to whether, on non-appearance of the complainant or on the death of the complainant in a summons case, the accused, should be acquitted or not and if he, for good reasons, thinks it proper, the Magistrate can proceed with the complaint, and adjourn the matter in the absence of the complainant or when the complainant has died.

The Gauhati High Court in Kushal Kumar Talukdar (Supra) has noted that it was glaring to the eyes that the complaint relates to the prosecution of the accused-petitioner for the offence allegedly committed by the accused-petitioner under Section 138 read with Section 142 of the N.I. Act. 51. The allegation is that the cheque issued by the accused, when presented for encashment, was returned with an endorsement “Payment stopped by the drawer”. The complainant, then, sent a notice to the accused-petitioner demanding payment of the amount for which the cheque in question, was drawn but despite receiving the notice/no payment was made by the accused-petitioner. The allegations so made, which may or may not be true, disclose commission of offence by the accused-petitioner under Section 138 read with Section 142 of the N.I. Act. In fact, the fact that the contents of the complainant disclose commission of the offence aforementioned is not, at this stage, in dispute. The important and necessary ingredients to be proved are the issuance of cheque, dishonour of the cheque, issuance of legal notice by the complainant demanding payment to the accused after the cheques had bounced. These are facts, which can be considered and proved in the absence of the complainant. Whether stopping of payment of cheque by a drawer amounts to dishonour of cheque or not within the meaning of Section 138 of the N.I. Act is a question as to whether the contents of the complaint, in question, when, read as a whole, amount to commission of offences under Section 138 of the NI Act. The complainant, who was dead, is, now, represented by the applicant and the applicant is the son of the deceased. In such a situation, there is no reason why the complaint case, in question, cannot be allowed to proceed. Viewed from this angle, the exercise of the discretion by the learned Magistrate to allow the opposite party therein (who is the son of the deceased complainant) to represent the complainant is based on sound judicial principles and is unimpeachable in law.

The Gujarat High Court in Anil G. Shah v. J. Chattaranjan Co., 1998 GLJ 3870 (Guj.) has laid down that in a case under Section 138 of the N.I. Act, where the complainant dies after taking of cognizance, the proceedings do not abate and trial has to be taken to its logical end following due process and the procedure laid down in Criminal Procedure Code. It has also been held that there is no provision in the Code of Criminal Procedure or the N.I. Act laying down that on account of death of payee, the trial must abate and as such, the proceedings cannot abate on the death of the complainant payee. Therefore, the legal heirs of the original complainant are entitled to come forward and ask for allowing them to represent the complainant so as to enable the Court to proceed further with the trial.

The Kerala High Court has held so in T.N. Jayarajan  Vs Jayarajan 1993 (1) ALT(CRI)147 (supra), The Jammu and Kashmir High Court in Ashok Kumar v. Abdul Latif, 1989 Cri. LJ 1856 (J & K). and Andhra Pradesh High Court in Maddipatta Govindiah Naidu v. Yelaklauri Kamalamma, 1984 Cri. LJ 1326 (AP) has also held in similar line.

The aforesaid discussion clearly reflects that in case of a complainant dies after cognisance of the complaint u/s 138 of Negotiable Instruments Act and if the legal heirs of deceased come forward to prosecute ethe complaint, there is no embargo in prosecuting the complaint. It is worthwhile to state that offence under section 138 of Negotiable Instruments Act is documentary in nature and after cognisance is taken and as section 139 of Negotiable Instruments Act entails presumption in favour of the complainant and still further, the complaint could still be prosecuted in absence of the complainant, in the above backdrop, hence, substitution of the complainant could be allowed as is held in Kushal Kumar Talukdar (Supra).    It may be noted that the complaint u/s 138 of NI Act is not in the nature of assault etc that only the complainant will be privy of and probably for want of direct evidence, the conclusion cannot be arrived at, in case the complainant is deceased. What therefore follows is that there is no prohibition in continuing with the prosecution on behalf of the deceased complainant by their legal heirs and a Magistrate can substitute the complainant in the perspective as referred to above. No doubt, the discretion vested in the Magistrate has to be exercised on the facts and circumstances of the case of each case.

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                                      Anil K Khaware

                                      Founder & Senior Associate

Societylawandjustoice.com

                  

 

EXAMINATION OF ACCUSED BY A JUDGE: SIGNIFICANCE OF SECTION 313 OF CRPC

 

Criminal trial begins after framing of charge and framing of notice as the case may be. In the complaint u/s 138 of Negotiable Instruments Act (In short NI Act”) after framing of notice u/s 251 Cr.PC (Correspond to Section 351 of BNSS) the process of trial starts from re-examination of the complainant. The complainant shall be examined and cross- examined, post summoning. The section 139 of Negotiable Instruments Act contains the provision of “presumption” in favour of the accused, in case cheque is shown to have been issued in his name, However, once the presumption is rebutted, the onus again shifts on the complainant to discharge the further onus. The shifting of the onus and its adequate discharge has been the quintessential elements of a trial u/s 138 of Negotiable Instruments Act. What is of further significance is the fact that section 313 Cr.PC is set in motion, once, complainant evidence stands closed and though, its significance is vastly undermined, but its significance in criminal trial cannot be negated by any stretch of imagination.

This is the only provision during criminal trial that there is a dialogue between a judge and accused and questions are framed by the judge in order to elicit answer from the accused. Conventionally, it is seen that the accused merely answers every vital question in negative, since, the mistaken belief is that in criminal trial an accused is not supposed to admit guilt and in fact he cannot be compelled to do so, but it does not mean that the accused should throw away the opportunity in ritualistic negative answers. A judge puts question to the accused on the basis of allegation on record and if the accused is innocent and have been framed, the opportunity is available to the accused to reflect on the record including the element of mala fide and framing in a false case. The judges as human being cannot be indifferent to reasonable assumptions that could be afforded to a judge during interaction with an accused. Judicial mind, upon pondering over the interaction could come to a plausible inference as regards the culpability of accused or lack of his involvement in crime. Thus, what is quite ignored in fact should be given due weightage and section 313 Cr.PC and statement of accused under the said provision cannot be seen as an empty formality. Moreover, there are instances when a judge records order of conviction or acquittal after taking note of the interaction of the accused u/s 313, since, the answer to the query shall enable a judge to come to a reasonable inference. Though, Section 313 Cr.PC interaction in itself may not be substantive ground for recording order of conviction or acquittal, but its significance3 in a criminal trial cannot be relegated, more so, it is an essential outlet towards audi alteram partem i.e no one can be condemned unheard.

Before dissecting the case law, the provision of Section 313 Cr.PC may be reproduced for ready reference:

313. Power to examine the accused-

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain the circumstances appearing in the evidence against him, the Court-

(a) May at any stage without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in summons case, where the Court has dispensed with the personal attendance of accused, it may also dispense with his examination under clause (b).

 (2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answer given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or Against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take the help of prosecutor or defence counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

It is important to note that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C. is to meet the requirement of the principles of natural justice i.e. audi alterum partem. Thus, incriminating evidence against the accused is put to him in his examination u/s 313 of Cr.PC so that accused has the opportunity to furnish some explanation as regards the incriminating circumstances surrounding him. It is more significant in a case based on circumstantial evidence and to connect the chain and to find out that chain is not complete. It is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him.

 

Case laws

   (SUPREME COURT)

In order to unravel the principle as contained in Section 313 and its effect, the evolution of law through successive judgments of Supreme Court could be referred to:  

(1)    In State of Maharashtra Vs Sukhdev Singh  AIR 1992 SC 2100, the Supreme Court has observed as under:

“…if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.”

(2)    In Mohan Singh Vs Prem Singh & Anr, AIR 2002 SC 3582, the Supreme Court has held:

“The statement of the accused under Section 311 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.”

(3)    In Dehal Singh Vs State of H.P AIR 2010 SC 3594, the Supreme Court has observed in the context of significance of the statement of accused and whether for want of cross examination that could be treated as evidence or not? It is held as under:

“Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of Indian Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter- alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section313 of the Code of Criminal Procedure as evidence as the accused cannot be cross- examined with reference to those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross-examination.”

 

(4)    In State of MP Vs Ramesh (2011) 4 SCC 786, the Supreme Court has held as under:

“The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined. his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 313 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.”

(5)   In Rafiq Ahmed @Rafi Vs State of UP, AIR 2011 SC 3114, the Supreme Court observed as under:

“It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….”

(6)    In Dharnidhar Vs State of UP & Ors (2010) 7 SCC 759, the Supreme Court held:

“The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.”

(7)    In Ramnaresh & Ors Avs State of Chhatisgarh, AIR 2012 SC 1357, the Supreme Court held as under:

“It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”

(8)    In Munish Mubar Vs State of Haryana AIR 2013 SC 912, the Supreme Court has held that duty is cast on the accused to furnish an explanation in his statement under Section 313 Cr.P.C upon being subjected to explain any incriminating material against him….”

 

(9)    In Raj Kumar Singh @ Raju @ Batya vs State of Rajasthan AIR 2013 SUPREME COURT 3150 it is noted by the Supreme Court that:

36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C”.

Thus, an adverse inference can be taken against the accused only if the incriminating material stands completely established and the accused when called upon to furnish any explanation for the same, nothing is forthcoming. Though, it bears no emphasis that the accused has a right to remain silent as he cannot be forced to become witness against himself.

In a criminal trial, there are cases where the conviction of the accused is sought on the basis of circumstantial evidence and still further, there could be contradictions/ improvements/embellishments in the deposition of witnesses and hence the link may not be connected. It is no gainsaying that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in entirety in as much as irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Even “exaggerations per se” do not render the evidence brittle, though that could be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty investigation. It is the duty cast on Courts to separate truth from untruth, embellishments and improvements and whether the residuary evidence is sufficient to convict the accused. In the perspective as above, statement of accused u/s 313 may provide a vital clog to the wheel to complete the circle of innocence or guilt, as the case may be.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

 

SECTION 311 of CRPC: When recall of witnesses are permitted

The criminal trial entails meticulous examination and cross examination of witnesses both in F.I.R cases or in complaint cases. It is so, because, on the premise of the testimony of witnesses, the fate of the case hangs in balance. The procedure is detailed in the Criminal Procedure Code (Cr.PC and now under Bhartiya Nagrik Suraksha Sanhita (BNSS). As we are currently concerned with section 138 of Negotiable Instruments Act complaints, therefore, the discussion in the context shall revolve around that. The parameter of applying section 311 of Cr.PC (Correspond to Section 348 of BNSS) is however similar. After the order of summoning of accused by the Magistrate, accused enters appearance and the complainant in summon cases shall have to present himself for examination and cross examination. After the examination of complainant and cross examination concludes and after the closure of complainant evidence, the statement of accused u/s 313 shall have to be undertaken, followed with defence evidence, if at all, the accused seeks to examine some defence witnesses and present such witnesses for cross examination. It is often seen however that during examination of defence witnesses, the accused seeks recall of complainant witness or witnesses for further examination. The need arises owing to variety of reasons that however shall be deliberated later. The moot point is when and in what manner the complainant witness could be recalled for cross examination. It is also observed that even complainant at alter stage seeks to examine their witnesses again. Though, there is no embargo in that regard, still, that is unusual.

Before going further, the provision as contained in section 311 Cr.PC is reproduced as under:

“311. Power to summon material witness, or examine person present.—

“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

The ambit of section 311 of Cr.PC and circumstances when it could be invoked is being dealt with herein. The Delhi High Court, recently in a matter reported as Rahul Darbari v. Arun Kumar Khobragade and Ors. (2024) ibclaw.in 272 HC (CRL.M.C. 1171/2022 & CRL.M.A. 5067/2022).

Without detaining on the facts of the case, the petitioner/complainant filed the application under Section 311 of the Cr.P.C. wishing to place on record copies of the petitions filed by the accused/respondents herein under Section 482 of the Cr.P.C. before the High Court, along with the documents filed therein; the counter affidavit(s) and the rejoinder(s) filed in those proceedings; copy of the Order dated 18.02.2019 passed by the High Court passed in the said petitions; and e-mail correspondences between the complainant and the accused, which, to the own assertion of the petitioner, formed part of the counter(s) filed to the petitions by the respondents herein before the High Court.

The trial court had dismissed the application u/s 311 of Cr.PC and the said order was Impugned before the high court. It was contended that the documents that are now sought to be produced on record, are one of the petitions filed earlier by the respondent, between the same parties along with the counter affidavit(s) and the rejoinder(s) filed therein; and the Order dated 18.02.2019 passed by the high court. It was further contended that the same being matter of record, should be allowed to be placed on record and should be considered by the learned Trial Court in order to have a complete and fair adjudication of the complaint filed by the petitioner. It was the case of the complainant that the best available evidence should be allowed to be brought before the Court, and even if mistakes crept in, the opportunity of curing that should be permitted. Further, it was submitted that Section 311 of the Cr.P.C. needs to be read along with Section 165 of the Indian Evidence Act, 1872, and it is the duty of the court to seek production of documents, in order to discover or to obtain proper proof of the relevant facts

RELIANCE BY THE COMPLAINANT/PETITIONER

1. U.T. of Dadra & Nagar Haveli and Anr v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529;

2. Varsha Garg v. The State of Madhya Pradesh and Ors. 2022 SCC OnLine SC 986;

3. Iddar and Ors v. Aabida and Anr. (2007) 11 SCC 211;

4. Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19;

5. Central Bureau of Investigation v. Abhishek Verma, 2023 SCC OnLine Del 724.

6. Fatehsinh Mohansinh Chauhan v. Union Territory of Dadra and Nagar Haveli, 2003 SCC OnLine Bom 207 ( Bombay High Court);

7. Boby @ Sanjeev Singh v. State of Madhya Pradesh and Anr., 2010 SCC OnLine MP 582 ( Madhya Pradesh High Court);

Further reliance was placed on Inayat v. Rex 1949 SCC OnLine All 110 (Allahabad High Court) to the effect that even if the first application filed by the petitioner under Section 311 of the Cr.P.C. was withdrawn or was even rejected on merits, it would not bar the filing of the second/subsequent application for the same relief. The scope of Section 311 of the Cr.P.C. is wide and is to be exercised in the interest of justice; it could be both in favour of and against the accused. Moreover, even if some evidence is inadvertently left out, such evidence should be allowed to be brought on record to find out the truth. Reliance in the context was placed on Smt. Fatima Hyder v. State of M.P. & Ors. Misc.Cri.C.No. 2812 of 1992, Judgment dated 08.09.1992 Madhya Pradesh High Court), Kesava Pillai and Ors. v. Emperor, 1929 SCC OnLine Mad 111 (Madras High Court) & State of Sikkim v. Pemba Sherpa, 1980 SCC OnLine Sikk 7 (Sikkim High Court).

RESPONDENTS/ACCUSED PLEA

(1) That the petitioner had earlier also filed an application under Section 311 of the Cr.P.C., seeking leave to place on record the very same documents, except the Order dated 18.02.2019 of the High Court, that are now sought to be placed on record by the application in question. The said application was withdrawn by the petitioner,

(2) Only on the conclusion of the evidence, and when the complaint cases were fixed for final hearing before the learned Trial Court, that the petitioner again moved the present application seeking to place on record the very same documents.

(3) The trial in the above complaint cases has been pending since the year 2015 and the petitioner wishes to re-open the whole trial.

RELIANCE BY THE RESPONDENT

(i) Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461;

(ii) Natasha Singh v. CBI, (2013) 5 SCC 741;

(iii) Nayna Rajan Guhagarkar v. The State of Maharashtra 2021 SCC OnLine Bom 1054; (Bombay High Court);

(iv) Karthik S Nair v. State of Kerala and Anr., 2023 SCC OnLine Ker 6847, (Kerala High Court)

It was thus contended that the application cannot be allowed at this stage.

It is held by the Delhi High Court in Rahul Darbari (Supra):

“25. Section 311 of the Cr.P.C. is a salutary provision which empowers the Court to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to it, to be essential to the just decision of the case. It is aimed at empowering the Court to find out the truth and to render a just decision. The object of the provision is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. Having said that, it is to be kept in mind that this power is discretionary, and is to be exercised only for strong and valid reasons, and with caution and circumspection. Recall of a witness cannot be a matter of course. Recently, in Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086, the Supreme Court carried out a study on the precedents on Section 311 of the Cr.P.C., as under:

“9. Section 311 of the Criminal Procedure Code, 1973 (hereinafter referred to as the “CrPC”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340: ’

17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order”.

18. In Vijay Kumar v. State of U.P. (2011) 8 SCC, this Court while explaining scope and ambit of Section 311 has held as under :

“17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.”

19. In Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court has considered the concept underlying under Section 311 as under : “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise 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.”

20. In State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402, it was held thus :

“… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.”

In Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 the Supreme Court had held as under:

’10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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 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.

The Delhi High Court in Rahul Darbari (Supra) has held as under:

“However, the question before this Court is whether the said proposition of law in any manner supports the plea of the petitioner in the facts of the present case. The answer, in my view, has to be in the negative.

27. As is evident from the above narration of facts, the petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr.P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr.P.C., sought to bring on record the documents that are now being sought to be brought on record by way of the application in question. The said application was withdrawn by the petitioner on 23.10.2019. The petitioner has not sought to explain the reason for withdrawing the said application, nor submitted any change in circumstances that would justify a new application with the same prayer to be filed afresh.

 29. Similarly, in Boby @ Sanjeev Singh (supra), the High Court of Madhya Pradesh, in fact, reiterated that successive applications for recall of a witness under Section 311 of the Cr.P.C. are not maintainable”.

The Delhi High Court, therefore, in Rahul Darbari (Supra) has held as under:

30. Coming back to the facts of the present case, after the dismissal of the first application filed by the petitioner under Section 311 of the Cr.P.C., the evidence of the petitioner got concluded and was closed on 03.03.2020 by the learned Trial Court. The statement of the respondents under Section 313 of the Cr.P.C. was recorded on 10.12.2021, and as they did not wish to lead any evidence in defence, the Complaint Cases were fixed for final hearing. It is only at this belated stage, that the petitioner filed the application in question. There is absolutely no justification given in the application for the delay in filing the same.

31. The application in question in the present case has been, admittedly, filed at a belated stage. It appears to be an afterthought. It only makes vague averments, and is also bereft of any explanation with regard to such delay. The learned Trial Court has also correctly observed that the petitioner has failed to file such documents with the complaint(s) itself or at an earlier and appropriate stage, even after being in possession of the said documents. There is also no explanation in the application in question with regard to the withdrawal of the earlier application seeking similar relief”.

The Delhi High Court in Rahul Darbari (Supra) has further held as under:

32. It is to be kept in mind that the accused also has a right to an expeditious conclusion of the trial, for mere pendency of a case accusing a person of a criminal offence can attach stigma and cause embarrassment. Reference in this regard can be made to the judgments of the Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352 and Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291. The right of the accused cannot be defeated with the complainant choosing to appear as a witness and file documents at his own terms and only when it is convenient to him.

33. It is also to be kept in mind that the proceedings in a complaint case under Section 138 of the NI Act are ordinarily to be conducted as a summary trial. The object of the provision being expeditious disposal of such cases, allowing the application of the petitioner to place on record the said documents would amount to re-opening the trial and would derail the proceedings which have already been dragged on for over seven years and will defeat the very purpose and object of the provision. Reference in this regard can be made to directions issued by the Supreme Court in its judgment in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116.

34. Another important consideration which weighs with this Court is that, as held by the Supreme Court in P. Mohanraj v. Shah Bros. Ispat (P) Ltd., (2021) 6 SCC 258, an offence under Section 138 of the NI Act is almost in the nature of a civil wrong which has been given criminal overtones. It can be said to be a ‘civil sheep‟ in a ‘criminal wolf’s clothing’, as it is the interest of the complainant/victim that is sought to be protected, the larger interest of the State being subsumed in the complainant/victim alone moving a court in cheque bouncing cases. It was further observed that it is really a hybrid provision to enforce payment under a bounced cheque. The Supreme Court has clarified that the gravity of proceedings under Section 138 of the NI Act cannot be equated with an offence under the Indian Penal Code, 1860, or other Criminal Statutes. If that be the nature and intent of the provision, with the complainant running the prosecution rather than the State, Section 311 of the Cr.P.C. should be more strictly applied against the Complainant. If the documents were in the possession and control of the Complainant, and the Complainant still chooses not to file the same at the earliest opportunity (if not with the complaint itself), the same should not be allowed to be filed at such a belated stage. This would protract the Complaint Case(s) endlessly and would defeat the rights of the accused, who, instead of or in addition to civil proceedings, is facing a criminal prosecution. Even under the Commercial Courts Act, 2015, such a belated application to file additional documents in a Commercial Suit, would be liable to be dismissed only on the ground of delay”.

The petition u/s 482 of Cr.PC seeking setting aside of application u/s 311 of Cr.PC was therefore dismissed by the High Court in Rahul Darbari (Supra).

Section 311 Cr.PC (Analogous to Section 348 of BNSS) has been a salutary provision with  a view to do complete justice and the documents if left out in the course of examination of witnesses, earlier, due to the fact that it was not in power and possession of a party who were to produce it earlier and that the documents being vital shall be necessary to be put on record for just decision in case and still further no prejudice is to be caused to the other party and there is no unreasonable delay in preferring the application that the application under section 311 of CR.PC could be taken recourse to and not otherwise. The application in mala fide pursuit and with a view to cause delay and gaping the holes of the case cannot be permitted.

It is to be borne in mind that the provision as contained in section 311 Cr.PC (Analogous to Section 348 BNSS) is a necessary clog in the wheel of criminal trial and may act as necessary adjunct with a view to ensure complete justice , but invocation of the application ritualistically and as an afterthought and to cause further delay with a view to inflict misery on the other party cannot be allowed.

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                             Anil K Khaware

Founder & Senior Member

Societylawandjustice.com