SHORT NOTE
DELHI HIGH COURT
Vipin Sanghi, J.
Acura Glass Tiles Enterprises —Appellant
versus
S.S. Ray —Respondent
Crl.A.No.273 of 2010
Decided on 20.1.2015

IMPORTANT POINT
A witness cannot be permitted to resile from his admission upon re-examination being permitted by Court.

Headnote:Negotiable Instruments Act, 1881 — Section 138 read with Criminal Procedure Code, 1973 — Section 378 — Acquittal — Appeal — Factum of issuance of four cheques in question by respondent/accused— Factum of said cheques being dishonoured upon presentation — Factum of complainant sending statutory notice of demand which received by accused — Factum of accused not making payment in terms of demand — Factum of complaint being preferred within statutory period of limitation of non-payment of demanded amount not in dispute — HELD — Re-examination of DW1 in relation to four cheques could not permitted and said re-examination cannot be read or looked into — Accused while claiming that four cheques not issued on dates that they bear —Thereby implying that dates filled up by complainant did not chose to lead any evidence — In respect neither report of handwriting expert produced nor accused sought reference of said cheques to CFSL for their report — Conduct of accused clearly militates against defence set up by accused — Complainant succeeded in establishing commission of offence under S. 138 of the Act by accused — In respect of four cheques beyond reasonable doubt.

       Held: Therefore, in my view, the re-examination of DW1, particularly, in relation to the four cheques (Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and Ex.CW1/E) could not have been permitted and the said re-examination cannot be read or looked into. Secondly, it is pertinent to note that the accused, while claiming that the four cheques (Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and Ex.CW1/E) had not been issued on the dates that they bear, thereby implying that the dates had been filled up by the complainant, did not chose to lead any evidence. In this respect, neither a report of a handwriting expert was produced, nor the accused sought the reference of the said cheques to the CFSL for their report. This conduct of the accused clearly militates against the defence set up by the accused.

        Thus, in my view, the complainant has succeeded in establishing the commission of the offence under Sectin 138 of the Act by the accused in respect of the four cheques (Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and Ex.CW1/E) beyond reasonable doubt. The defence set up by the respondent cannot be said to be a probable one. The fact remains that there was admitted liability to the tune of Rs. 3,50,000/- of the accused and he had issued the four cheques in question in partial discharge of the said liability.

       (ii) Criminal Procedure Code, 1973 — Section 311 — Interpretation of — Application under — Read along with S. 138 of Evidence Act — Following principles will have to be borne in mind by Courts — HELD — Discretion vested in Court to permit re-examination of witness under S. 311 Cr.PC to be exercised on broad principle — That same considered necessary to meet ends of justice and if not so permitted may lead to injustice.

       Held: Thus, the discretion vested in a Court to permit re-examination of a witness under Section 311 Cr.P.C. has to be exercised on the broad principle that the same is considered necessary to meet the ends of justice and if not so permitted, may lead to injustice. The said wide discretionary power has to be exercised judiciously and not arbitrarily. The said power should be exercised by the court after satisfying itself that it was essential to examine a witness or to recall him for further examination in order to arrive at a just decision of the case. The purpose of exercise of the power to permit re-examination of a witness is to prevent failure of justice. At the same time, the additional evidence must not be received as a disguise, or to change the nature of the case against any of the parties. The said power must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

       Result: Appeal allowed.