Martin and Harris Pvt. Ltd. vs Sanatan Saha

Ajay Kumar Gupta, J.:

By filing this Criminal Revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (In short ‘Cr.P.C.’), the petitioner challenged the correctness, legality and propriety of an order dated April 10, 2024 passed by the Learned Judicial Magistrate, 4^th Court at Sealdah, South 24 Parganas in connection with C. Case No. 195/1998.

By the said order impugned, the learned Trial Court rejected the application filed under Section 311 of the Cr.P.C., observing therein that the petition lacks clarity on how the mentioned documents could not be brought on record earlier and it is the clear attempt of the petitioner to fill up the lacuna, already pointed out by the defence during the trial. The learned Trial Court further held that the Court is not inclined to delay the argument in the case which is pending for more than 25 years any further.

The specific case of the petitioner is that the opposite party had dishonest intention from the beginning and with such dishonest intention, induced the petitioner to part with the valuable goods on the representation that the opposite party will pay the value of the goods by issuing cheques.

Two cheques amounting to Rs. 2,54,514/- and Rs. 2,00,000/-were issued for making payment towards goods supplied. Despite issuing those two cheques, the opposite party issued instructions to the bank for non-payment. Although the cheques were issued in discharge of liabilities, no payment was made even after repeated demands by the petitioner.

The authorised representative of the petitioner company compelled to file a complaint case being C. Case No. 195 of 1998 before the Learned Additional Chief Judicial Magistrate at Sealdah against the opposite party herein when the cheques were returned with the endorsement “payment stopped by the drawer”.

During trial, four witnesses on behalf of the complainant were examined and the accused was examined under Section 313 of the Cr.P.C., which was completed after a prolonged delay due to several adjournments taken by the opposite party. At the time of examination under Section 313 of the Cr.P.C. on September 19, 2019, the accused person falsely stated that he had no transaction with the petitioner and he had not issued any cheques in favour of the petitioner.

Subsequently, it had come to the notice of the authorised person of the petitioner company, as well as the present learned counsel appearing for the petitioner company, that inadvertently and fortuitously the invoices and lorry receipts were not exhibited during the trial. As such, the petitioner intended to bring those invoices and lorry receipts to prove the transaction between the parties by adducing further evidence.

Accordingly, an application under Section 311 of Cr.P.C. was made on behalf of the petitioner company to file additional documents, i.e. invoices and lorry receipts, by producing its branch manager for proper and effective disposal of the aforesaid complaint case. However, the said application was rejected by the learned Trial Court, without any valid reason(s). If the invoices and lorry receipts are not produced before the learned Trial Court, the petitioner company will suffer irreparable loss and injury which cannot be compensated in any manner. Hence, this application.

Learned senior counsel appearing on behalf of the petitioner submitted that the application should have been allowed by the learned Trial Court as the invoices and lorry receipts are essential documents to prove the transaction and supply of goods to the opposite party and to the just decision of the complaint case.

There is a statutory provision under Section 311 of the Cr.P.C. by which any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

Learned senior counsel further submitted that the application filed by the petitioner is not to fill up the lacuna, but to discover the truth on a transaction between the parties by producing invoices and lorry receipts which ultimately prevent the miscarriage of justice. If this Court sets aside the order and allows the application under Section 311 of the Cr.P.C. filed by the petitioner, the opposite party will not be prejudiced and will be given the opportunity to cross-examine the recalled witnesses.

Learned senior counsel appearing on behalf of the petitioner has placed reliance on the following judgments to support his contention as aforesaid: -

Learned counsel appearing on behalf of the opposite party, on the other hand, vehemently opposed the prayer of the learned senior counsel appearing on behalf of the petitioner and further submitted that the application filed by the petitioner under Section 311 of the CrPC is frivolous and only for the purpose of dragging the case and filling up the lacuna, which is pending since 1998.

It was further submitted that the petitioner had concluded its evidence by examining four witnesses way back in the year 2015 and at the stage of argument, a frivolous application has been filed on 5^th January, 2024, that clearly indicates the petitioner’s intention of deliberate dilatory tactics from the end of the petitioner. The petitioner also tried to improve his case by filling up the lacuna already pointed out by the defence during the trial and examination under Section 313 of the Cr.P.C. After a delay of approximately 10 years, such application cannot be justified in allowing the same without any valid ground. Furthermore, the petitioner failed to demonstrate why they did not place the documents which they are now relying upon for more than 25 years. None of the witnesses whispered about the invoices and lorry receipts. Therefore, it cannot be termed as mere oversight or any inadvertent mistake during the trial. Therefore, the petitioner is merely trying to fill up the lacuna which is clearly evident from the application and the Learned Trial Court has rightly rejected the application under Section 311 of the CrPC filed by the petitioner with a valid or cogent reason, which does not require interference.

Having heard the submissions made by the learned counsels appearing on behalf of the respective parties and upon perusal of the record, this Court finds that the petitioner had filed a complaint case in the year 1998 being C. Case No. 195 of 1998 under Section 420 of IPC before the Learned Additional Chief Judicial Magistrate at Sealdah against the opposite party herein.

It further appears from the record that four witnesses have been examined and when the matter was fixed for argument, suddenly, the petitioner/complainant filed an application under Section 311 of Cr.P.C. on 05.01.2024 on the ground that some documents i.e. invoices and lorry receipts could not be produced before the learned Trial Court for proper adjudication which are essential to brought on record by way of recalling the witnesses and summoning further witnesses.

This Court has carefully assessed the record and is finally of the view that the learned Trial Court has rightly rejected the petition filed under Section 311 of the Cr.P.C. After examination of four witnesses, the accused was examined under Section 313 of the Cr.P.C. and at the time of argument, the Petitioner filed an application praying for recalling/summoning further witnesses which only seems to fill up the lacuna or to make out his case after knowing the defence case. The learned Trial Court should not be casual while allowing such a type of application made at the time of arguments, and the learned Trial Court rightly rejected the application considering the facts involved in the case and the 25-year-long pendency of the proceedings.

It is an undisputed fact that the petitioner had got ample opportunity to place his case before the learned trial court but failed to bring such documents, which are now being relied upon by the petitioner after disclosing the defence case. It amounts to filling up the lacuna, which is clearly evident from the contention of the petitioner. Such prayer cannot be allowed in casual manner, the petitioner must satisfy the court that the documents are indispensable for arriving at the truth and could not be brought before the court despite due diligence.

The judgments relied upon by the petitioner are not at all fitting with the facts and circumstances of the present case; accordingly, such decisions are not applicable in the present case.

Consequently, C.R.R. No. 1892 of 2024 stands dismissed.

Connected applications, if any, are also, thus, disposed of.

Interim order, if any, stands vacated.

Let a copy of this judgment be forwarded to the Learned Trial Court for information and taking necessary action in accordance with law.

All parties shall act on the basis of server copy of this judgment duly downloaded from the official website of this court.

Urgent photostat certified copy of this judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal formalities.