Point of Law: Provisions of Section 311 of Cr.P.C. which confer upon Court power to summon material witness etc. cannot be permitted to be abused by either party to prolong litigation or to fill lacunae in their case.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, filed under Section 482 of the Criminal Procedure Code (hereinafter to be referred as ‘Cr.P.C.’), the petitioner has challenged order dated 14.06.2022, passed by the Court of learned Chief Judicial Magistrate, Mandi, District Mandi, H.P., in terms whereof, an application filed under Section 311 of the Cr.P.C. by the applicant/accused for re-examination of the complainant has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are as under:-

A complaint under Section 138 of the Negotiable Instruments Act has been filed by the respondent herein against the present petitioner, on the ground that a cheque issued by the petitioner to the respondent/complainant for an amount of Rs.1,10,000/-, dated 09.06.2011, in discharge of her legal liability, when presented for being honoured, was dishonoured on account of ‘insufficient funds’. The complaint was filed as far back as in the month of July, 2011. During the pendency of these proceedings, the application was filed by the petitioner herein under Section 91 of the Cr.P.C. read with Section 311 of Cr.P.C. for recalling the complainant in the witness box for her cross-examination on the grounds mentioned therein. The application was dismissed by learned Trial Court and petition preferred against the said dismissal before this Court also met the same fate. While dismissing the petition preferred by the present petitioner earlier before this Court, i.e. Cr.MMO No.4 of 2018, this Court in terms of its order dated 10.05.2018, inter alia, observed that in the cross-examination of the complainant’s witnesses as conducted by the petitioner, there was not even a slightest whisper that there was some writing executed on 13.03.2011 between the parties as was subsequently being sought to be produced from the complainant in terms of the application filed under Section 311 of the Cr.P.C. This Court further observed that even if it was assumed that the document was misplaced as alleged by the accused, then also nothing prevented the party from cross-examining the witnesses regarding the facts that had led to the execution of the document. On these basis, it was held that the petitioner was not entitled to the benefits of the provisions of Section 311 of the Criminal Procedure Code and the same was dismissed.

3. After dismissal of this application, another application was filed by the petitioner again under the provisions of Section 311 of the Cr.P.C., seeking re-examination of the complainant now inter alia on the ground that the petitioner wanted to reexamine the complainant as new facts had come into existence to the effect that document dated 13.03.2011 stood executed between the complainant and the accused regarding completion of work and the cheque No.061559, drawn upon State Bank of India, which document was signed by the parties and copy thereof was already filed alongwith the earlier application preferred by the petitioner under Section 311 of the Cr.P.C.

4. In terms of impugned order dated 14.06.2022, this application has also been dismissed by learned Court below by holding that as an earlier application with similar prayer was dismissed by learned Trial Court and the order was upheld by the High Court, hence, the subsequent application having been filed at the stage of defence evidence was nothing but a mode to delay further proceedings in the case. Learned Trial Court also observed that prayer of the petitioner to produce alleged document before this Court was earlier declined which order was upheld by the High Court and the filing of the application was nothing but a mode to delay the proceedings. By returning these findings, the application stood dismissed with costs.

5. Learned counsel for the petitioner has argued that whereas earlier, the prayer of the petitioner was for re-examination of the complainant alongwith issuance of a direction to the complainant to produce original receipt, now the petitione