TMI Blog2013 (11) TMI 1812X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication under Section 311 Cr.P.C. moved by the petitioner/complainant was dismissed. The petitioner is a partnership firm which was running a petrol pump at 31/3 Village Behloolpur Khaddar, outer ring road, opposite ISBT Sarai Kale Khan, Delhi in the name of M/s. Ashish Services and deals in petrol and petroleum products. A complaint under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act') was filed by the petitioner in the name of partnership firm through its Power of Attorney holder Mr. Rohit Jain with respect to bouncing of cheque amounting to Rs. 14,70,053/-. Mr. Rohit Jain was duly authorized by the partnership firm vide Special Power of Attorney dated 22nd July, 2008 to file a complaint. During cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aused to the respondent if an opportunity is granted to the petitioner to bring on record new power of attorney ratifying the earlier power of attorney. Hence this petition. 3. Counsel for respondent No. 2 had appeared on 26th July, 2013, however, none appeared on his behalf on 6th November, 2013 when the matter was listed for hearing. 4. I have heard Mr. M.A. Niyazi, learned counsel for the petitioner. 5. Application under Section 311 Cr.P.C. was dismissed by learned Trial Court primarily on the ground that application of this kind cannot be used to fill lacuna. 6. Section 311 Cr.P.C. provides for power to summon material witness, or examine person present. This Section reads as under: 311. Power to summon material witness, or examine pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood as lacuna and so can be corrected. 9. Application under Section 311 Cr.P.C. was primarily dismissed by the learned Trial Court on the ground that application of this section cannot be used to fill up lacuna and Grafitek (supra) does not vouch for the argument that previous power of attorney which was not duly notarized can be ratified by filing fresh power of attorney. 10. Dealing with the aspect of lacuna in prosecution case, in Rajendra Prasad (supra) it was observed as under: 7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not 'fill the lacuna in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. 10. Dealing with Corresponding Section in the old Code Section 540. Hidyatullah J speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra 1968 Cri. LJ 231 as follows: It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage or the trial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness or allowing the power of attorney ratifying the earlier power of attorney to be placed on record because it is settled law that procedural law is handmade of administration of justice and should not be allowed to come in the way of doing substantial justice to the parties. Moreover, a perusal of the impugned order reflects that even counsel for the accused had no objection to the filing of fresh power of attorney, his only objection was regarding ratifying of previous power of attorney which remained to be notarized. 12. The complaint in question has been filed for dishonor of cheque of Rs. 14,70,053/- given by the accused. The complainant does not wish to lead any further evidence regarding the main substratum which may go to the roo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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