The court emphasized that the power under Section 311 Cr.PC should be used judiciously and not as a means to delay proceedings or fill up lacunae in the prosecution's case.

JUDGMENT

Jasjit Singh Bedi, J. (Oral). - The prayer in the present petition under Section 482 Cr.PC is for quashing of Order dated 06.04.2022 (Annexure P-8) passed by the learned JMIC, Amritsar in complaint bearing No.NACT1780/17.04.2017 under Section 138 of the Negotiable Instruments Act, District Amritsar titled HDFC Bank Vs. EMM EMM Constructions vide which the application moved by the petitioner/accused under Section 311 Cr.PC has been dismissed.

2. The brief facts of the case are that the respondent-HDFC Bank filed a complaint under Section 138 against the petitioner being the authorised signatory of M/s EMM EMM Constructions with the allegations that the firm had availed a loan facility from the Bank and in order to discharge the loan amount the petitioner had issued a post date cheque in favour of the complainant Bank which on presentation was dishonoured on the ground of insufficiency of funds. Based on the said complaint the trial Court summoned the petitioner to face the trial for an offence under Section 138 of the Negotiable Instruments Act.

3. Initially the complaint was filed through Bhupinder Singh, Manager Legal as authorised signatory of the bank. Subsequently the complainant moved an application dated 5.7.2017 for substituting Rajinder Parshad, Deputy Manager to pursue the complaint in place of Mr. Bhupinder Singh. The said application for substitution was allowed by the Trial Court vide order dated 26.07.2017. During the course of trial Rajinder Parshad appeared as CW-1 and tendered his affidavit. He was cross examined by the earlier counsel for the petitioner.

4. After the statement of the accused-petitioner was recorded under Section 313 Cr.PC, he moved an application under Section 311 Cr.PC for further cross examination of CW-1 Rajinder Parshad lawful attorney of the bank. In the said application the prayer of the petitioner/accused was that there was a change of counsel and further cross examination of the complainant officer of the bank was required on two issues (i) Whether proper notice had been served on the accused or not & (ii) Whether the complaint had been filed by a lawful attorney of the bank. It was the contention in the application that these facts had come to the notice of the new counsel for the accused and, therefore, re-cross examination was necessary and may be allowed.

5. The reply to the application was submitted by the bank. It was contended that the officer of the Bank had been cross examined at length.

6. The moving of the present application was just a delaying tactics as the accused had challenged every order of the Trial Court and had filed a number of applications at various stages of the proceedings which had been dismissed by the trial Court. Further the complaint had been filed in the month of January 2016 and both the accused had been declared proclaimed offender vide order dated 1.7.2016. Pursuant to being grant bail from April 2017 onwards the hearing was prolonged on one pretext or the other. It was thus contended that even otherwise the complaint was pending since January 2016 for more than 06 years and change of counsel was no ground for further cross examination/re-cross examination.

7. Based on the respective pleadings of the parties, the application under Section 311 Cr.PC came to be dismissed vide order dated 06.04.2022 (Annexure P-8). It is this order which is under challenge before this Court.

8. The Counsel for the petitioner contends that he seeks only one opportunity to further cross examine/re-cross examine the complainant on two vital aspects of the matter i.e. Whether notice had been served and whether the complainant had been properly authorised by the bank to pursue the complaint against the petitioner/accused. He contends that moving of the present application has been necessitated because of a change of counsel as it was only him who later on realised after he had been engaged as the new counsel that certain material question had not been put to the witness duri