The Delhi High Court upheld the trial court’s discretion to recall a witness and admit a promissory note at a late stage under Section 311 of the CrPC, rejecting the petitioners’ attempt to quash the order via Section 482. The judgment delineates the scope of the court’s inherent powers and the limits of procedural objections.
Background & Facts
The Dispute
The petitioners, SRS INFRATECH PVT LTD and another, were accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the late Shyam Chaudhary. The complaint alleged that the petitioners had obtained a loan of Rs. 25,00,000 on 16.11.2009 and executed a loan agreement on the same date. The complainant died during the trial; his legal representatives, Kumud Chaudhary and others, substituted as respondents.
Key Facts
- 16.11.2009: Loan agreement and promissory note dated, amount Rs. 25,00,000, interest 27% p.a.
- 19.02.2020: Respondents filed an application to place an additional affidavit and the promissory note on record.
- 10.11.2021: Trial court noted no reply to the above application; counsel for the complainant withdrew the application.
- 07.09.2022: Respondents moved an application under Section 311 CrPC to recall witness Ms. Kavita Chowdhary for further examination to tender the promissory note.
- 17.10.2022: Trial court allowed the recall and permitted the promissory note to be marked as Exhibit CW-1/7.
- 25.03.2023: Additional Sessions Judge dismissed the revision petition (Criminal Revision No.23/2023) upholding the trial court’s order.
- 13.08.2026: Delhi High Court delivered the present judgment on the petition under Section 482 CrPC.
Procedural History
- 16.11.2009: Loan agreement executed.
- Date unspecified: Complaint under Section 138 NI Act filed by Late Shyam Chaudhary.
- 19.02.2020: Application to place additional affidavit with promissory note filed.
- 10.11.2021: Order noting withdrawal of the above application.
- 07.09.2022: Application under Section 311 CrPC filed to recall witness.
- 17.10.2022: Trial court allowed recall and admission of promissory note.
- 25.03.2023: Revision petition dismissed by Additional Sessions Judge.
- 13.08.2026: Petition under Section 482 CrPC dismissed by the High Court.
Relief Sought
The petitioners sought quashing of the order dated 17.10.2022 permitting recall of Ms. Kavita Chowdhary and admission of the promissory note, and a declaration that the High Court should not interfere under Section 482 CrPC.
The Legal Issue
Whether the trial court’s exercise of power under Section 311 CrPC to recall a witness and admit a promissory note at a late stage of the proceedings is permissible, and whether the High Court may exercise inherent jurisdiction under Section 482 CrPC to set aside that order.
Arguments Presented
For the Petitioners
- The application under Section 311 was filed belatedly, after the defence evidence had been completed, constituting an impermissible attempt to fill a lacuna.
- The petitioners argued that Section 311 cannot be used to revisit matters already decided, invoking Section 362 CrPC.
- They contended that the promissory note’s genuineness was disputed, so Section 294(3) CrPC barred its admission without formal proof.
- Reliance was placed on Harbhajan Lal Nayyar v. State and Ram Jeet v. State for a strict requirement of necessity, and on Practice Direction No. 9(h)(xv) for procedural timing.
For the Respondents
- The promissory note had already been sought to be placed on record in February 2020; the later application merely sought recall of the witness to tender the same document.
- The document is germane to the dispute involving a Rs. 25 lakhs loan and therefore essential for a just decision.
- Section 311 CrPC confers a wide, discretionary power that can be exercised at any stage, provided the evidence is necessary and the opposite party can rebut it.
- Cited Rajaram Prasad Yadav v. State of Bihar and P. Chhaganlal Daga v. M. Sanjay Shaw for the principle that delay alone does not preclude the exercise of Section 311.
The Court's Analysis
The Court began by interpreting Section 311 CrPC as a broad statutory power that allows 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". It emphasized that the exercise of this power must be "judicially exercised" and limited to situations where the evidence is "essential to the just decision of the case".
"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 Court reiterated the Supreme Court’s articulation in Rajaram Prasad Yadav that the material sought must be germane, and the opposite party must be afforded an opportunity of rebuttal. It distinguished the present case from Harbhajan Lal Nayyar, where an application sought to recall a large number of witnesses without a satisfactory explanation of necessity. Here, only one identified witness was to be recalled for a single document already identified in the record.
The Court noted that the promissory note had been disclosed in an affidavit on 19.02.2020, and the later application under Section 311 did not introduce a new document but merely facilitated its evidentiary production. Consequently, the objection that the application was a device to fill a lacuna was rejected.
Regarding Section 362 CrPC, the Court observed that the order of 10.11.2021 did not constitute a final judgment; therefore, the petitioners could not claim that the later application amounted to a review of a conclusive order.
On Section 294(3) CrPC, the Court clarified that the provision only dispenses with formal proof when the document’s genuineness is not disputed. Since the genuineness of the promissory note was contested, the parties retained the right to prove or disprove it during trial; the marking of the document as Exhibit CW-1/7 did not preclude such dispute.
The Court also addressed the procedural argument based on Practice Direction No. 9(h)(xv), holding that the direction governs the timing of production and marking but does not curtail the statutory discretion conferred by Section 311.
Balancing the delay against the necessity, the Court concluded that the material was not extraneous, the parties would have an opportunity to cross-examine, and the discretion under Section 311 was properly exercised. Accordingly, no ground existed for the High Court to invoke its inherent jurisdiction under Section 482 CrPC to set aside the trial court’s order.
The Verdict
The petition under Section 482 CrPC is dismissed. The order dated 17.10.2022 permitting recall of Ms. Kavita Chowdhary and admission of the promissory note is upheld. The interim protection operating in the proceedings is vacated, and any pending applications are disposed of. The trial court is directed to proceed with the trial expeditiously, without any further interference from this Court.
What This Means For Similar Cases
Section 311 Can Be Exercised Late When Essential
- Courts may recall witnesses and admit documents even after defence evidence is closed, provided the material is directly relevant to the controversy.
- The mere fact of delay does not, by itself, render an application under Section 311 untenable.
Dispute Over Genuineness Does Not Bar Admission
- Section 294(3) CrPC does not prohibit the production of a disputed document; it only waives formal proof when genuineness is admitted.
- Parties retain the right to challenge the authenticity of a document through cross-examination and proof.
Inherent Jurisdiction Under Section 482 Is Not a Blanket Bar
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A petition under Section 482 cannot be used to overturn a trial-court order that is within the statutory discretion of Section 311.
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The High Court must demonstrate a clear abuse of power or violation of natural justice before interfering.
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Practitioners should ensure that any application to recall a witness clearly articulates why the evidence is indispensable.
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When seeking admission of a document at a late stage, counsel must be prepared to justify its relevance and address any disputes over authenticity.
