The main legal point established in the judgment is that the power to recall witnesses under Section 311 of the Criminal Procedure Code must be exercised fairly and judiciously, and attempts to introduce new evidence after the conclusion of the trial may be deemed unjustified.

Crl. M.C. 2864 of 2012 and Crl. M.A. No. 1427 of 2012 (Stay)

1. Brief background of the case is that the respondent No.2 filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short ‘NI Act’) against the petitioner alleging that her husband Captain Shambhu Prasad Sinha who retired as a pilot from Indian Airlines was lured by the petitioner along with one Vikas Jain to invest his savings and retiral benefits in their company M/s R.L. Infrastructure (in short ‘the company’) of which the petitioner and Vikas Jain were the Directors. Persuaded by the assurances of the petitioner and Vikas Jain the respondent No.2 and her husband gave their entire savings amounting to Rs. 38 lakhs by way of a cheque drawn by the husband of the complainant Shambhu Prasad Sinha from their joint account in favour of the company. The said cheque was encashed on 4th May, 2005. Since the complainant’s family was facing acute financial crises she and her husband insisted on return of the amount of which only Rs. 5 lakhs were returned however, Rs. 33 lakhs were not returned, despite promise to pay in two years along with the interest of 18% with quarterly rests. After a lapse of two years and repeated persuasions, without any interest, the petitioner issued seven cheques for a sum of Rs. 33 lakhs from his personal account besides promising payments towards accumulated interest on the said amount after a period of six months of the cheque relating to the principal amount. When the seven cheques were presented they were dishonored with the remarks ‘insufficient funds’. One of the cheuqe bearing No.858969 was returned with the memo dated 18th September, 2009 bearing remarks ‘mutilated’. However, cheque No.858964 and 858966 were also returned with remarks ‘insufficient funds’. The respondent No.2 issued a legal demand notice dated 17th September, 2009 which was dispatched vide registered AD and through courier on 19th September, 2009 and since the petitioner failed to pay the amount of Rs. 33 lakhs within 15 days, the complaint was filed.

2. During the course of proceedings Uma Sinha, respondent No.2 and her husband Shambhu Prasad Sinha were examined and cross-examined however, the document, that is, receipt dated 23rd September, 2005 was not put to these witnesses on the plea that the same was not traceable with the petitioner. When the statement of the petitioner under Section 313 Cr.P.C. was in the process of being recorded, the receipt dated 23rd September, 2005 was filed stating that the same had been traced from the old company records and an application under Section 311 Cr.P.C. was filed for recalling Uma Sinha and Shambhu Prasad Sinha which was dismissed by the learned Trial Court on 5th February, 2010. This order was challenged by way of revision petition before the learned Additional Sessions Judge which was partly allowed and Shambhu Prasad Sinha was recalled for cross-examination.

3. During the further cross-examination Shambhu Prasad Sinha denied the signatures of Uma Sinha on the receipt dated 23rd September, 2005. The petitioner had not challenged the order of revisional court denying re-examination of Uma Sinha. Thus, after the further cross-examination of Shambhu Prasad Sinha wherein he denied the signatures of Uma Sinha, the petitioner again filed an application under Section 311 Cr.P.C. seeking to recall Uma Sinha which was dismissed by the learned Trial Court vide order dated 2nd August, 2011. Revision petition filed against the said order was also dismissed by the learned Additional Sessions Judge on 20th September, 2011. The two orders were challenged before this Court in Crl. Misc. petition under Section 482 Cr.P.C. which was also dismissed.

4. Unfazed by all these orders, the petitioner again filed an application for verification of the signatures of Uma Sinha on the receipt dated 23rd September, 2009 through FSL. This application was dismissed vide order dated 13th February, 2012. H