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TMI Blog2022 (3) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... y petitioner u/Ss. 91 & 311 of CrPC for calling the original statement of account from concerning bank in order to prove the factum of dishonour of cheque, has been rejected. (2) Similarly, MCRC No.29183/2018 filed by the same petitioner complainant- Vinay Saxena, challenging the order dated 16/07/2018 passed by JMFC, Gwalior in Criminal Case No.157 of 2011, by which the application filed by petitioner u/Ss. 91 & 311 of CrPC for producing the bank passbook in order to prove the factum of dishonour of cheque, has also been rejected. Since the facts of both petitions are same, therefore, for sake of convenience, both the petitions are heard together. (3) Necessary facts for disposal of both the petitions, in short, are that petitioner- comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t brought to the notice of petitioner- complainant when a specific question was put by the defence counsel and there was no reason for leaving the bank seal on the cheque return memo and, therefore, there is no delay in filing the application. It is the mistake on the part of Bank concerned for not affixing the seal in the bank memo. It is further contended that as per provisions of Section 311 of CrPC, the Court has enormous powers for grant of permission for recalling of witness, much less for limited purpose, as claimed by the complainant. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. To buttress his contention, the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same". Provision of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person. (17.4) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (17.5) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. (17.6) The wide discretionary power should be exercised judiciously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, may lead to undesirable results. (17.12) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (17.13) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (17.14) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be presumed that the documents were issued by the authority of the Bank concerned and it can be proved before the Court very well. It is also relevant to mention here that the matter is regarding Section 138 of the NI Act and the objection raised by the petitioner in the present matter is irrelevant. (11) Therefore, viewed from any angle, in my considered opinion, the learned trial Court has not committed any manifest error of law warranting interference under exercise of inherent powers of this Court. Admittedly, there is no reason in the present matter to exercise powers under Section 482 of CrPC to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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