Subsequent payment or settlement does not negate the offense under Section 138 of the Negotiable Instruments Act.

1. AGAINST an order passed in connection with a proceeding relating to the offence punishable under Sections 138/141 of the Negotiable Instruments Act, whereby the Trial Court has rejected the petitioner’s application under Section 311 of the Code of Criminal Procedure for examination of the bank personnel as defence witness, the petitioner has now approached this Court by moving the instant criminal revisional application.

2. HEARD the Learned Counsels appearing on behalf of the parties. Perused the materials on record. It appears from the submissions of the Learned Counsel of the petitioner as well as from the averment made in the petitioner’s application under Section 311 of the Code of Criminal Procedure moved before the Learned Court below that it is the case of the petitioner that P.W. 1, the authorized representative of the payee through whom the impugned complaint case has been instituted, in his cross-examination admitted that he received a demand draft equivalent to the amount of the impugned cheques as per the meeting held on June 21, 2005 but he was silent on the point of statement of accounts of his banker and has not produced anybody from the bank as a witness, though he has encashed the said draft and realized the draft amount. According to him the examination of bank personnel and production of relevant records of the bank is very much essential for just decision of the case and consequently the impugned order is liable to be quashed. On the other hand, both the Learned Counsels appearing on behalf of the opposite parties vehemently urged that the instant criminal revisional application is absolutely frivolous and the order impugned requires no interference.

3. NOW, having regards to the impugned order, I find the Trial Court has rejected the petitioner’s application under Section 311 of the Code of Criminal Procedure on the ground such prayer for examination of defence witness has been made at a very belated stage. The Learned Trial Court was also of the view that the provisions of Section 311 of the Code of Criminal Procedure can be invoked only where Court finds that there cannot be any just decision without examination of such particular witness. In course of hearing of this criminal revision, the Xerox certified copy of the deposition of the P.W. 1 was produced before this Court by the Learned Counsel of the petitioner and now having gone through the same, I find that the witness through whom the aforesaid complaint case was instituted although admitted that they received part payment but derived to have received full payment. The witness further stated a meeting for compromise was held on June 21, 2005 when the representatives of both sides were present but no written settlement was there. According to the said witness as per the compromise they received two drafts, one for Rs. 18 lakhs and another for Rs. 1.62 lakhs.

4. IT further appears that the examination of the aforesaid witness was finished as far back as on March 7, 2007, whereas, the application under Section 311 was filed three years after. Although, the stage at which such an application is moved is not very material but in my consideration, from the evidence of the witness through whom the complaint was filed the petitioner has not been able to make out any case to justify the Trial Court to allow their application under Section 311 of the Code of Criminal Procedure. When the witness has admitted receipt of part payment, the examination of bank witness to establish the factum of such payment is not at all necessary. IT is well settled after cause of action had arisen and pursuant to that a criminal case for offence punishable under Section 138 of the Negotiable Instruments Act has been instituted, any subsequent payment or any settlement by and between the parties at best shall be a mitigating factor in the matter of imposition of sentence and that would not obliterate the commission of the offence. However, in terms of provisions of Se