Neelam vs Rajinder Kumar and Others

Dev Darshan Sud, J.—This petition challenges the legality of the order passed by the learned trial Magistrate dismissing the revision petition instituted by her against the order passed by the learned Judicial Magistrate, Court No. 1 Sunder Nagar, rejecting her application for leading additional evidence.

The Petitioner herein is being tried for offences u/s 138 of the Negotiable Instruments Act. She preferred an application before the learned Judicial Magistrate praying that permission be granted to her u/s 311 Code of Criminal Procedure to recall the complainant for further cross-examination. The application reads:

Application u/s 311 Cr. P.C. to recall the complainant for further cross-examination.

Sir,

The applicant most respectfully submits as under:

That the above titled case is pending before the Hon''ble Court and fixed for 19.8.2010.

That the applicant/want to further cross-examine the complainant as the various facts were not on record i.e. source of income bank accounts and Income Tax Return, which is more relevant to prove the real facts in the aforesaid case. The applicant want to cross examine on the following points:

(a) What was the source of income, from which the alleged amount has been given to the accused and cheque No. thereof.

(b) Whether the amount was withdrawn from Bank and the same has been mentioned in the statement of account.

(c) Whether the amount has been mentioned in the Income Tax Return during the Assessment year and PAN thereof.

It is, therefore, prayed that the application may kindly be allowed and the complainant may kindly be recalled in order to cross-examine him on the aforesaid facts in the interest of justice, for which applicant shall be obliged

In reply, it is urged by the Respondent that a similar application was moved earlier but was withdrawn. It is urged that the application is nothing but an abuse of the process of law.

The learned Magistrate by his order dated 25.9.2010, holds that the complainant-Rajinder Kumar was cross examined at length on 5.6.2010 and nothing material could be established. On the question of source of income, whether the amount was withdrawn from the Bank, this question had already been put to the complainant in cross examination. Simply stating that there have been no effective cross-examination is no ground for exercising discretion u/s 311 Code of Criminal Procedure In revision, learned Additional Sessions Judge, dismissed the revision petition holding that revision was not maintainable u/s 311 Code of Criminal Procedure.

The Petitioner now urges that the decision arrived at by the learned court below is against the settled principles of law. He refers to the decision of this Court in Cr. MMO. Nos. 35, 36, 37 and 80 of 2010 decided on 29.6.2010 holding that prayer u/s 311 Code of Criminal Procedure.

should be allowed in a liberal manner as the law laid down by the Supreme Court is that the interest of justice is paramount. A number of decisions were referred to in that case.

Adverting to the facts of the present case, I find that three questions to be put to the complainant herein are summarized in the application. These questions, if any, relate to the tax status of the Petitioner. I do not find that it is a case where this application can be allowed so that the case lingers on. In case the Petitioner herein feels that the Respondent has been guilty of committing a fraud on the income tax law by concealing/non-disclosing of his income before the authority, it would be open to him to submit certified copies of the complaint and the statement of the complainant herein to the Income Tax Authorities, who will take further action in accordance with law, more especially considering that the statements made by the Petitioner are on oath before a criminal Court. Petition is disposed. No order as to costs. All interim order is vacated.