Gujarat HC Sets Aside Refusal To Let Cheque-Bounce Complainant Produce Late Ledger, Bills And NI Act Notice Reply

The petitioner, complainant in a prosecution under Section 138 of the Negotiable Instruments Act, alleged that seven cheques issued in connection with business transactions had been dishonoured.

After the complainant’s evidence was completed, his son testified and referred to documents including a commercial suit, the accused’s reply to the statutory notice, and the complainant’s ledger account with bills and a Section 65B certificate.

The complainant applied under Exhibit 48 to produce those documents.

The Magistrate rejected the application, reasoning that the documents were not produced at the appropriate stage, no sufficient explanation was given for the delay, and the application sought to cure omissions in the evidence.

The complainant challenged that order; connected petitions challenged corresponding orders in two other cases.

Section 311 of the Code of Criminal Procedure gives a court broad power to summon, examine, recall, or re-examine a witness at any stage; its mandatory limb requires the court to do so where the evidence appears essential to the just decision of the case.

The power is directed toward discovering the truth and must be exercised judicially, not arbitrarily; the possibility that additional evidence may fill a loophole is a subsidiary consideration and is not, by itself, a bar.

Section 165 of the Evidence Act complements Section 311 by empowering the court to elicit necessary material in aid of justice.

The court also relied on Rajendra Prasad v. State of Bihar for the principle that an inadvertent omission to bring relevant material on record may be corrected, and on Zahira Habibullah Sheikh v. State of Gujarat concerning the court’s truth-seeking role.

Expeditious disposal of proceedings under the Negotiable Instruments Act remains important, but should not displace the interests of justice.

The High Court considered the accused’s reply to the Section 138 notice important to a just determination and found that the ledger account and bills bore on the complainant’s business-transaction case.

Their omission from the complaint or earlier evidence, and their later reference during the son’s testimony, did not alone justify excluding them.

Applying the essentiality test under Section 311, the Court concluded that delay and the possibility of filling an evidentiary gap could not outweigh the documents’ relevance to deciding the case fairly.

It also held that the summary character of Section 138 proceedings did not justify sacrificing relevant evidence where justice required its consideration.

The Court quashed and set aside the Magistrate’s orders rejecting the applications to produce documents in Criminal Case Nos. 7512/2019, 7515/2019, and 7514/2019.