SRS Infratech Pvt Ltd & Anr. vs Kumud Chaudhary & Ors.

Madhu Jain, J.

The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘CrPC’) has been filed by the Petitioners assailing the judgment dated 25.03.2023 passed by the learned Additional Sessions Judge-03, South-East District, Saket Courts, New Delhi in Criminal Revision No.23/2023, whereby the challenge to the order dated 17.10.2022 passed by the learned Metropolitan Magistrate-09, South-East District, Saket Courts, New Delhi was dismissed.

By the order dated 17.10.2022, the Respondents were permitted to recall Ms. Kavita Chowdhary under Section 311 CrPC for further examination in relation to the promissory note dated 16.11.2009. The Petitioners also assail the subsequent marking of the said promissory note as Ex. CW-1/7 and seek setting aside of the aforesaid proceedings.

The dispute arises out of a complaint instituted by Late Shyam Chaudhary under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’) against the Petitioners. The case of the complainant is that Petitioner No. 1, through Petitioner No. 2, had availed a loan of Rs. 25 lakhs from him and had entered into a loan agreement dated 16.11.2009 in this regard. During the pendency of the proceedings, the original complainant passed away and his legal representatives, who are the Respondents herein, were substituted in his place.

The Petitioners contested the complaint. Their defence, as noticed in the proceedings before the learned ASJ, is that no loan transaction had taken place between the parties and that the cheque in question had been issued as security in connection with a proposed forward sale of property belonging to the original complainant, which transaction did not materialise.

The record further shows that the complainant’s witness had been examined and discharged, the statement of the accused had thereafter been recorded, and Petitioner No. 2 had also stepped into the witness box in defence and had been cross-examined. The proceedings subsequently continued at the stage of defence evidence.

During the pendency of the defence evidence, the Respondents sought to bring on record a promissory note dated 16.11.2009. An application seeking to place an additional Affidavit along with the said promissory note on record had been filed on 19.02.2020. The additional Affidavit stated that the promissory note had not been placed on record earlier and that the legal representatives of the deceased complainant had subsequently come across the document. The promissory note was annexed with the said application.

The aforesaid application remained pending before the learned Trial Court. On 10.11.2021, the learned Trial Court recorded that no reply to the application had been filed despite opportunity. After some arguments, learned counsel for the complainant sought permission to withdraw the application.

The relevant portion of the order dated 10.11.2021 reads as under:

Subsequently, on 07.09.2022, the Respondents moved an application under Section 311 CrPC seeking recall of Ms. Kavita Chowdhary, who had earlier deposed as the complainant’s witness, for further examination. The application stated that the promissory note had been filed in the case and that examination of the said witness was required for bringing the document on record.

The application came to be allowed by the learned Trial Court vide order dated 17.10.2022. The learned Trial Court recorded the submission on behalf of the Respondents that, since the original complainant had expired, the promissory note had come into the possession and knowledge of his legal representative subsequently. The learned Trial Court also noticed that an earlier application for bringing the promissory note on record had been withdrawn.

While allowing the application, the learned Trial Court observed as under:

The learned Trial Court accordingly permitted additional evidence by way of Affidavit along with the original promissory note to be filed, with advance copy to learned counsel for the accused.

Aggrieved by the order dated 17.10.2022, the Petitioners preferred Criminal Revision No.23/2023 before the learned ASJ. The principal grounds urged were that the application under Section 311 CrPC did not disclose sufficient reasons for introduction of the promissory note at such a belated stage; that permitting the subsequent application amounted to review of the order dated 10.11.2021 contrary to Section 362 CrPC; that the Respondents were attempting to fill lacunae in their evidence, and that the second application amounted to re-agitation of the relief which had earlier been withdrawn.

By judgment dated 25.03.2023, the learned ASJ dismissed the revision petition. The learned ASJ noticed that the loan agreement dated 16.11.2009 related to a principal amount of Rs. 25 lakhs with interest at the rate of 27% per annum and that the promissory note sought to be proved was also dated 16.11.2009, was for Rs. 25 lakhs and reflected the same rate of interest. The learned ASJ, therefore, found that the promissory note was in consonance with the case of the complainant as already presented before the learned Trial Court.

The learned ASJ also took note of the fact that the original complainant had expired and that the Respondents claimed to have acquired knowledge of the promissory note subsequently. While acknowledging that the document was sought to be proved at a considerably late stage, the learned ASJ held that delay alone could not be determinative of an application under Section 311 CrPC where the material was required for arriving at a just decision. The learned ASJ, however, compensated the Petitioners for the delay by imposing costs of Rs.10,000/- upon the Respondents. The revision petition was accordingly dismissed.

Aggrieved by the aforesaid judgment dated 25.03.2023, the Petitioners have approached this Court by way of the present petition under Section 482 CrPC.

Learned counsel appearing for the Petitioners submits that the promissory note dated 16.11.2009 was sought to be introduced at an impermissibly belated stage. He places reliance upon the chronology of the proceedings to contend that the issues had already been settled, the complainant’s evidence had concluded, the accused had been examined and Petitioner No. 2 had also entered the witness box in defence before the Respondents sought to rely upon the promissory note. It is, therefore, submitted that the Respondents cannot be permitted to reopen the complainant’s evidence after the defence of the Petitioners has already been disclosed.

Learned counsel further submits that the very same promissory note had earlier been sought to be placed on record and that the application was withdrawn on 10.11.2021 after arguments. Learned counsel vehemently asserts the subsequent application under Section 311 CrPC was merely an attempt to obtain, through a different provision, substantially the same relief which had earlier been abandoned. It is thus contended that permitting the subsequent application amounted to reviewing the earlier order, which is prohibited by Section 362 CrPC.

Learned counsel submits that the learned Trial Court did not record the requisite satisfaction that recall of the witness and production of the promissory note were essential for a just decision of the case. Learned counsel submits that the application under Section 311 CrPC itself did not explain why the document had not been produced earlier or how its production was indispensable for adjudication of the complaint.

Reliance in this regard is placed upon Harbhajan Lal Nayyar v. State, MANU/DE/0416/1990, to contend that the party invoking Section 311 CrPC must make out a proper case and the Court must be satisfied that the proposed evidence is necessary for the just decision of the proceedings. Learned counsel also relies upon Ram Jeet v. State, MANU/UP/0109/1958, and Rajaram Prasad Yadav v. State of Bihar & Anr., MANU/SC/0663/2013, particularly the principles requiring the Court to determine whether recall or additional evidence is genuinely essential to the just decision of the case.

Learned counsel further submits that the promissory note is specifically disputed by the Petitioners. Reliance is placed upon Section 294(3) CrPC to contend that only a document whose genuineness is not disputed can be read in evidence without formal proof. It is submitted that once the Petitioners disputed the promissory note, the learned Trial Court could not have permitted it to be brought on record and marked in evidence in the manner done.

Learned counsel also relies upon Practice Direction No. 9(h)(xv) issued by this Court and submits that the procedure relating to production, admission/denial and marking of documents requires the documents to be produced at the appropriate stage. It is contended that permitting a fresh document after conclusion of the complainant’s evidence defeats the prescribed procedure.

Learned counsel appearing for the Respondents submits that the controversy concerns only one document, namely, the promissory note dated 16.11.2009. It is submitted that the original complainant had passed away during the pendency of the proceedings and that his legal representatives subsequently came across the said document.

Learned counsel emphasises that the promissory note was not sought to be introduced for the first time through the application dated 07.09.2022. The Respondents had already sought to place the document on record by way of an additional Affidavit filed on 19.02.2020. Therefore, the allegation that the document was devised or introduced only after disclosure of the defence is without basis.

Learned counsel further places reliance upon the order dated 10.11.2021 and submits that the earlier application was never rejected on merits. The learned Trial Court neither held the promissory note to be inadmissible nor returned any finding upon its genuineness. The application was merely withdrawn at the request of learned counsel for the complainant. It is further pointed out that the said order itself records that no reply to the application had been filed by the Petitioners despite opportunity.

Learned counsel further submits that the subsequent application under Section 311 CrPC was moved specifically to recall Ms. Kavita Chowdhary for the purpose of tendering the promissory note in evidence. It is submitted that the Petitioners would have a full opportunity to cross-examine the said witness in respect of the document and, therefore, no prejudice would be caused to them.

Learned counsel relies upon Rajaram Prasad Yadav (supra) and submits that the determinative consideration under Section 311 CrPC is whether the evidence is required for arriving at a just decision. It is submitted that the jurisdiction under Section 311 CrPC is wide and cannot be curtailed merely on account of the stage at which the application is filed, provided the Court considers the proposed evidence necessary and protects the right of the opposite party to rebut the same.

Insofar as Section 294(3) CrPC is concerned, learned counsel submits that the provision merely dispenses with formal proof where the genuineness of a document is admitted. It does not provide that a disputed document cannot be brought on record or proved by the party relying upon it. It is submitted that the Petitioners would remain entitled to dispute the execution, genuineness and evidentiary value of the promissory note during cross-examination and at the stage of appreciation of evidence.

This Court has heard learned counsel for the parties and has perused the material on record.

The principal question which arises is whether, at the stage at which the proceedings had reached, recall of Ms. Kavita Chowdhary for the limited purpose of bringing the promissory note dated 16.11.2009 into evidence was permissible in exercise of powers under Section 311 CrPC. The objections raised under Sections 362 and 294(3) CrPC, as also the objection founded upon the stage of production of the document, arise from this principal issue.

Section 311 of the CrPC is couched in wide terms. It empowers a Court, at any stage of an inquiry, trial or other proceeding, to summon a person as a witness or recall and re-examine a person already examined. The latter part of the provision mandates such exercise where the evidence appears to the Court to be essential to the just decision of the case. The width of the power is accompanied by a corresponding requirement that it be exercised judicially and for the purpose for which the provision has been enacted.

The principles governing Section 311 CrPC have been authoritatively summarised by the Supreme Court in Rajaram Prasad Yadav (supra). For the present case, the following principles are relevant:

The Supreme Court further held that the evidence sought to be tendered must be germane to the issue involved, an opportunity of rebuttal must be afforded to the opposite party, and the power must be exercised with care, caution and circumspection. At the same time, the Court cautioned that a party cannot invariably be foreclosed from correcting an error where relevant material has not been brought on record due to inadvertence.

One aspect of Section 311 CrPC requires emphasis in the context of the Petitioners’ contention that the application dated 07.09.2022 did not itself contain a detailed explanation as to why the evidence was essential. The jurisdiction under Section 311 CrPC is vested in the Court. Its exercise is not dependent exclusively upon the sufficiency of pleadings contained in an application filed by either party. Indeed, the provision permits the Court to summon or recall a witness even on its own motion. The relevant inquiry, therefore, is whether the evidence sought to be introduced is germane and whether its reception is required for a just adjudication, while ensuring that no unfair prejudice is caused to the opposite party.

The Petitioners have principally objected to the recall on the ground that the complainant’s evidence had already concluded, the defence of the Petitioners stood disclosed and the proceedings were at the stage of defence evidence. The stage of the proceedings is undoubtedly a relevant consideration. It is, however, not by itself determinative.

In this regard, P. Chhaganlal Daga v. M. Sanjay Shaw, MANU/SC/1290/2001, is of particular relevance. The said case also arose out of proceedings under Section 138 of the NI Act. The complainant had completed his examination, cross-examination and re-examination. Arguments had concluded and the matter had been posted for judgment when an additional document, namely, a postal receipt, was sought to be produced in exercise of powers under Section 311 CrPC. The High Court interfered on the ground that permitting the document at that stage would enable the complainant to fill a lacuna.

The Supreme Court reversed the High Court judgment, while relying upon Rajendra Prasad v. Narcotic Cell, MANU/SC/0397/1999, and observed as under:

The Supreme Court further reiterated that the power under Section 311 CrPC could be exercised “even if evidence on both sides is closed”, the controlling consideration being whether the material is essential for the just decision of the case.

The principle which emerges is that a distinction has to be maintained between an inherent lacuna in the case of a party and an omission to bring relevant material into evidence. Section 311 CrPC cannot be employed to fundamentally alter the nature of the case or to give a party an unfair opportunity to construct a new case after seeing the evidence of the opposite side. Equally, however, an omission in producing material which is otherwise germane to the controversy does not become incurable merely because the proceedings have advanced.

Applying the aforesaid test to the present case, there are certain circumstances which are material. The controversy concerns one identified document, namely, the promissory note dated 16.11.2009. It is not a document which surfaced for the first time with the application under Section 311 CrPC in September, 2022. The record shows that the Respondents had sought to bring the same promissory note on record through an additional Affidavit filed on 19.02.2020. In that Affidavit, Ms. Kavita Chowdhary specifically stated:

Thus, the document had already been placed before the Court in February, 2020, during the continuance of defence evidence. The subsequent application under Section 311 CrPC did not seek to introduce an altogether new document for the first time. Its object was to recall Ms. Kavita Chowdhary, who had already deposed as the complainant’s witness, so that the document could be brought into evidence. The application itself records that the promissory note had already been filed and that her further examination was sought for bringing the same on record.

This chronology is relevant while examining the allegation that the application was merely a device to fill a lacuna after disclosure of the Petitioners’ defence. It does not, at this stage, establish the genuineness of the document or the correctness of the explanation offered for its late discovery. It does, however, show that the promissory note was not introduced for the first time through the application under Section 311 CrPC.

The document is also not extraneous to the subject matter of the complaint. The complaint concerns an alleged transaction of Rs. 25 lakhs between the original complainant and the Petitioners. The promissory note is dated 16.11.2009, i.e., the same date as the agreement forming part of the complainant’s case, and is asserted by the Respondents to have been executed by Petitioner No. 2 in connection with the same transaction. Whether that assertion is ultimately established is a matter of proof. However, the document cannot, at this stage, be characterised as wholly foreign or collateral to the controversy.

This distinction is important. The Court, while exercising jurisdiction under Section 311 CrPC, is not called upon to finally determine whether the proposed evidence is truthful or whether the document sought to be proved is genuine. Such an inquiry would amount to adjudicating the evidentiary worth of the document before it is tested. The question at this stage is whether the material is sufficiently connected with the controversy to justify its being brought into evidence and subjected to the ordinary process of proof.

The allegation that the promissory note is forged and fabricated, therefore, cannot by itself constitute a ground for excluding the document at the threshold. The Petitioners are entitled to dispute its execution, challenge the explanation regarding its discovery, cross-examine the witness through whom it is sought to be proved and raise all objections available to them in law. Those objections are matters for appreciation of evidence and cannot be conclusively determined in proceedings under Section 482 CrPC.

The decision in Harbhajan Lal Nayyar v. State (supra), relied upon by the Petitioners, does not lead to a different conclusion. There, after prosecution evidence had been closed following examination of 11 witnesses, the statement of the accused had been recorded, defence evidence had concluded and the matter had reached final arguments, an application was moved seeking examination of as many as 24 additional witnesses. The application merely stated that the witnesses had somehow remained unexamined and that their testimony was essential for a just decision.

It was in that factual background that this Court found absence of material demonstrating how the testimony of those witnesses was essential. The present case stands on a materially different footing. It concerns one specified witness sought to be recalled in relation to one identified document; the document had already been sought to be placed on record in February, 2020; and it pertains, on the Respondents’ case, to the very transaction which forms the subject matter of the complaint. Harbhajan Lal Nayyar (supra), therefore, does not support an absolute proposition that recall becomes impermissible merely because the evidence of the concerned party has earlier concluded.

Similarly, Ram Jeet v. State, (supra), does not assist the Petitioners on the question of stage. The decision holds that, for the purpose of the corresponding provision in the earlier Code, the trial continues until pronouncement of judgment and that fresh evidence may be received until that stage. The Court specifically concluded that a Magistrate or a Judge sitting alone is entitled to call fresh evidence up to the stage of delivery of judgment.

The contention founded upon Section 362 of the CrPC also does not merit acceptance. The Petitioners proceed on the basis that the earlier attempt to bring the promissory note on record had already been rejected and that the subsequent invocation of Section 311 CrPC amounted to review of that decision.

The contemporaneous record does not support this premise. The proceedings dated 10.11.2021 record that the application for taking the additional Affidavit on record was pending and that no reply had been filed despite opportunity. After some arguments, learned counsel for the complainant stated that he wished to withdraw the application, which request was allowed. There is no adjudication upon the genuineness, admissibility or evidentiary value of the promissory note. Nor is there any finding that the document was forged or fabricated.

Section 362 CrPC provides that, once a Court has signed its judgment or final order disposing of a case, it shall not alter or review the same except for correction of a clerical or arithmetical error. The proceedings dated 10.11.2021 contain no adjudication of the issue on merits, much less a judgment or final order disposing of the case. There was, therefore, no determination concerning the promissory note which could be said to have subsequently been reviewed. The objection under Section 362 CrPC consequently fails.

The objection under Section 294(3) CrPC proceeds on a different footing. The Petitioners contend that, since the genuineness of the promissory note is disputed, the document could not have been marked as Ex. CW-1/7 or read in evidence.

Section 294 CrPC, however, makes a clear distinction between production of a document and dispensation with its formal proof. Sub-section (1) contemplates filing of documents by either side and admission or denial of their genuineness. Sub-section (3) provides that where genuineness is not disputed, the document may be read in evidence without proof of the signature of the person by whom it purports to have been signed.

Therefore, sub-section (3) does not provide that a document whose genuineness is disputed becomes inadmissible or is incapable of being produced. It merely denies the party relying upon such document the benefit of dispensing with formal proof.

The position has been considered by a Coordinate Bench of this Court in Naveen Panchal v. State (NCT of Delhi), MANU/DE/6907/2024. After examining Section 294 CrPC, the Court held:

The Petitioners’ construction of Section 294(3) CrPC would effectively convert a provision intended to dispense with unnecessary formal proof into a rule excluding every disputed document from evidence. Such an interpretation is neither borne out from the language of the provision nor from Naveen Panchal (supra).

Consequently, merely because the promissory note has been marked as Ex. CW-1/7 does not establish its execution, genuineness or contents. Since its genuineness is disputed, the Respondents must prove the document in accordance with law. The marking of the document does not foreclose any objection of the Petitioners to its proof, admissibility or evidentiary value.

The objection founded upon Practice Direction No. 9(h)(xv), as referred to by the Petitioners, also does not create an absolute bar against reception of the document. The material placed before this Court describes the Practice Direction as dealing with the stage of production, identification and marking of documents. However, nothing in the material supplied demonstrates that the said Practice Direction curtails the statutory jurisdiction expressly conferred by Section 311 CrPC to recall a witness “at any stage” where the requirements of the provision are otherwise satisfied. The stage at which a document is sought to be introduced remains relevant to delay, bona fides and prejudice; it cannot, without more, extinguish the statutory power itself.

The question of prejudice must finally be considered. The Petitioners have already disclosed their defence and the promissory note is sought to be introduced at a late stage. This circumstance cannot be treated lightly. At the same time, the nature of the prejudice has to be examined. The Petitioners are not being deprived of an opportunity to meet the document. Ms. Kavita Chowdhary is being recalled precisely so that the document may be brought through evidence, thereby giving the Petitioners an opportunity to cross-examine her in relation to its alleged discovery, execution and contents. The Petitioners remain free to lead such evidence as may be permissible in law in rebuttal.

This is also consistent with the principle in Rajaram Prasad Yadav (supra) that additional evidence must be germane and that the opposite party must be afforded an opportunity of rebuttal. The safeguard against prejudice lies not in excluding relevant evidence merely because it is produced late, but in ensuring that the opposite party is given a complete and effective opportunity to challenge it.

The recent decision of a Coordinate Bench of this Court in VE Commercial Vehicles Ltd. v. Sunil Kapoor, MANU/DE/4292/2026, reiterates that Section 311 CrPC confers wide discretion exercisable “at any stage”, with a just decision of the case remaining the paramount consideration, while the power must nevertheless be exercised with judicial circumspection.

On a cumulative consideration of the record, this Court finds that the present case does not involve an attempt to introduce evidence wholly unrelated to the existing controversy or to fundamentally alter the case of the complainant. The promissory note is an identified document stated to relate to the same transaction; it had been sought to be placed on record in February, 2020; the earlier application was withdrawn without any adjudication on the merits of the document; and the Petitioners retain the right to contest the document through cross-examination and in accordance with the ordinary rules of proof.

The delay in production of the promissory note is undoubtedly substantial and the explanation offered by the Respondents would have to withstand scrutiny during the trial. However, delay by itself cannot be elevated into an absolute rule of exclusion, particularly in light of the express language of Section 311 CrPC and the decision of the Supreme Court in P. Chhaganlal Daga (supra).

Equally, the allegation that the document is forged or fabricated remains an allegation at this stage. Permitting a document to be brought into evidence cannot be equated with accepting it as genuine. Its execution and genuineness have to be established by the party relying upon it, and its evidentiary worth has to be assessed thereafter.

This Court is, therefore, of the view that no ground is made out for exercise of inherent jurisdiction under Section 482 CrPC. Interference at this stage would have the effect of excluding the promissory note without permitting the process of proof and cross-examination to run its course, despite the document being prima facie connected with the transaction which forms the subject matter of the complaint.

It is, however, clarified that nothing stated herein shall be construed as expressing any opinion on the genuineness, execution or evidentiary value of the promissory note dated 16.11.2009. The fact that the document has been permitted to be brought on record and marked as Ex. CW-1/7 shall not dispense with its admissibility in accordance with law.

The Petitioners shall remain at liberty to cross-examine the concerned witness in respect of the promissory note and to raise all objections concerning its execution, genuineness, admissibility and evidentiary value. All such questions shall be determined independently on the basis of the evidence led by the parties, without being influenced by any observation contained in the present judgment.

Accordingly, the present petition is dismissed. Pending application(s), if any, are also disposed of.

The interim protection operating in the present proceedings stands vacated.

Considering that the complaint has remained pending for a considerable period, the proceedings shall now be taken forward expeditiously, in accordance with law.

A copy of this judgment be communicated to the concerned learned Trial Court for necessary information and compliance.

The judgment be uploaded on the website forthwith.