Sandeep Sharma, J
Being aggrieved and dissatisfied with order dated 13.05.2024 passed by Judicial Magistrate First Class, Nahan, District Sirmaur, H.P., whereby an application under Section 311 Cr.P.C filed by the respondent-complainant, seeking therein permission to examine person namely Vikrant Sehgal, Chief Manager of Punjab National Bank, to prove Certificate issued by him under Section 65-B of Indian Evidence Act, came to be allowed, petitioner-accused has approached this court in the instant proceedings filed under Section 482 of the Code of Criminal Procedure, praying therein to set aside the aforesaid order.
2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant instituted petition under Section 138 of the Negotiable Instruments Act (hereinafter to be referred to as ‘Act’) in the competent court of law against the petitioner-accused alleging therein that cheque issued by him towards discharge his lawful liability has been dishonoured. With a view to substantiate averments contained in the complaint, respondent-complainant led evidence, however, Clerk of the bank concerned, which had issued return memo, failed to prove the certificate issued in support of electronically generated record brought by him as same was issued under the signature of another person. On account of non-examination of person responsible for issuing the certificate under Section 65- B of Indian Evidence Act, electronically generated document though was marked, but not exhibited. In the aforesaid background, respondent-complainant before conclusion of his evidence filed an application under Section 311 Cr.P.C., seeking therein permission to examine Chief Manager of the bank concerned, however, such prayer of him came be seriously refuted at the behest of petitioner-accused, who beside raising objection of maintainability submitted that respondent-complainant had sufficient opportunity to lead his evidence and once witness being the issuing authority to issue such certificate was in the knowledge of the respondent-complainant, he ought to have examined him at first instance and at this stage, he cannot be permitted to fill up lacuna. Learned trial court vide impugned order dated 13.05.2024 allowed the application, whereby an opportunity came to be afforded to the respondent-complainant to examine Mr. Vikrant Sehgal, Chief Manager, to prove Certificate issued under Section 65-B of Indian Evidence Act, which though already stands produced, but has been marked as Mark-K. In the aforesaid background, petitioner- accused has approached this court in the instant proceedings, praying therein to set aside the aforesaid order.
3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Parveen Chandel, learned counsel for the petitioner is that once Chief Manager was summoned as witness and he instead of coming himself authorized Clerk of the bank to produce the record, there was no occasion, if any, for the court below to allow the prayer made on behalf of the complainant to examine Chief Manager. Mr. Chandel, further submitted that when despite notice above named Chief Manager had failed to put in appearance, he otherwise could not have been permitted to be reexamined in terms of provision contained under Section 311 Cr.P.C.
4. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned order, this court finds no illegality or infirmity in the same and as such, no interference is called for. Careful perusal of Section 311 Cr.P.C clearly reveals that court at any stage of any inquiry, trial or other proceeding under the Code may 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 for the just decision of the case.
5. Bare reading of aforesaid provision of law clearly reveals that power to summon any person is not confined to any particular class of person, rather any person, whose statement may be relevant for just decision of the case, can be summoned by the court in terms of aforesaid provision of law. It is settled in law if a conditions under this Section are satisfied the court can call a witness not only on the application of either of the parties but on its own motion also.
6. Moreover, power of court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence of both the sides is closed so long as court retains seisen of the criminal proceedings. Admittedly, in the case at hand, application under 311 Cr.P.C has been filed by the petitioner before conclusion of his evidence. It is also not in dispute that pursuant to requisition, bank concerned produced the record, but not by the person, who had actually issued Certificate under Section 65-B of Indian Evidence Act in support of electronically generated documents. No doubt, at first instance summon was issued to Chief Manager of the bank concerned to produce record, but he instead of putting appearance, sent the Clerk of the bank concerned to produce the record, who though produced the record, but was unable to exhibit certificate issued under Section 65-B of Indian Evidence Act for the reason that he had not issued that document, rather that document was issued by Chief Manager. Having realized aforesaid mistake, respondent- complainant, who admittedly at first instance had sought summoning of Chief Manager of the bank concerned, filed an application under Section 311 Cr.P.C for examination of person responsible for issuing Certificate under Section 65-B of Indian Evidence Act. It is not in dispute that Certificate issued under Section 65-B of the Indian Evidence Act though was produced, but could not be exhibited for the reasons, as detailed hereinabove. Though Mr. Parveen Chandel, learned counsel for the petitioner, attempted to argue that the witness, who despite notice failed to put in appearance, could not have been permitted to be examined by way of filing application under Section 311 Cr.P.C, but this court sees no force in aforesaid submission for the reason that bare reading of provision contained under Section 311 Cr.P.C., as taken note hereinabove, clearly reveals that any person can be summoned as witness or recalled or re-examined at any stage of proceedings. Power to summon under aforesaid provision of law is not confined to any particular class of person, rather any person, whose evidence may be relevant for just decision of the case can be summoned by the petitioner exercising power under Section 311 Cr.P.C.
7. Record clearly reveals that notice of accusation was put to the petitioner-accused on 07.09.2022 and thereafter, statements of witnesses were recorded on 27.05.2023. One complainant’s witness was examined on 09.08.2023, but before evidence of the complainant could be concluded, he filed an application under Section 311 Cr.P.C. for examination of Chief Manager of bank concerned to prove Certificate issued under Section 65-B of Indian Evidence Act. Since, there was no delay in moving the application, coupled with the fact that there was no dispute that Certificate under Section 65-B of Indian Evidence Act qua the correctness and genuineness of the record adduced on record as Mark-A was actually issued by Vikrant Sehgal, Chief Manager, no illegality can be said to have been committed by the court below, while permitting respondent-complainant to examine aforesaid person Vikrant Sehgal, Chief Manager. Had Clerk of the bank concerned not produced record, qua which above named Vikrant Sehgal had issued Certificate under Section 65-B of the Indian Evidence Act, Mr. Parveen Chandel, learned counsel for the petitioner, would have been right in contending that allowance of the application, if any, would amount to filling up of the lacuna. However, in the instant case, though, the requisition record was produced, but same could not be exhibited for the reason that person responsible for issuance of certificate under Section 65- B of the Indian Evidence Act was not present, rather, record in question was brought by some other official.
8. Having perused Section 311 Cr.P.C in entirety, this court is not persuaded to agree with Mr. Parveen Chandel, learned counsel for the petitioner, that since Vikrant Sehgal was already summoned as witness and he had failed to come present, court below, while exercising power under Section 311 Cr.P.C could not have permitted respondent to examine Vikrant Sehgal pursuant to request made by way of an application under Section 311 Cr.P.C.
9. Bare reading of Section 311 Cr.P.C clearly reveals that the person, who was not even summoned as the witness can be recalled and re-examined, especially when, it appears to court that his/her evidence would be essential for just decision of the case.
Since, above named person after his being permitted to give statement with regard to authenticity of Certificate issued by him under Section 65-B of Indian Evidence Act would be always available for cross-examination by the petitioner-accused, no prejudice, if any, can be said to be caused to the petitioner-accused on account of passing of impugned order, which otherwise appears to be just and fair in the circumstances of the case.
10. Consequently, in view of discussion made hereinabove, this court finds no illegality or infirmity in the impugned order dated 13.05.2024 and as such, same is upheld. Accordingly, present petition fails and dismissed alongwith pending applications, if any.
