Relevant Bank Records May Justify Witness Recall Under Section 348 BNSS Despite Earlier Omission

The original complainant, Smt. Usha Nagpal, alleged that she had advanced ₹12,00,000 to the respondent in March 2014 through two cheques of ₹8,00,000 and ₹4,00,000. The respondent allegedly issued two cheques dated 21 February 2019 towards repayment; both were dishonoured for insufficiency of funds. A statutory legal notice dated 18 March 2019 was issued and was replied to by the respondent disputing his liability.

Due to serious illness, the complainant executed a special power of attorney in favour of the present applicant on 3 September 2019. She subsequently died on 8 November 2019, and the applicant was substituted in her place. During the trial of the complaint under Section 138 of the Negotiable Instruments Act, a bank official was summoned. Owing to confusion between two complaints bearing similar titles, the evidence of a bank official was initially recorded in the other matter. After the error was corrected, the Branch Manager/competent authority of State Bank of India, Nagpur Road Branch, was examined on 16 March 2026.

On examining the witness’s statement and document Ex.P-9, the applicant claimed that the cheque-presentation and dishonour particulars had not been produced. An application under Section 311 Cr.P.C./Section 348 BNSS was therefore filed on 23 March 2026, seeking recall of the bank witness and production of the relevant bank register and connected records. The Trial Court rejected the application on 24 March 2026, holding that the witness had already been examined and cross-examined, that the complainant had not objected earlier, and that the application appeared intended to cure inconsistencies and delay the proceedings.

The criminal revision against that order was dismissed as not maintainable on 22 May 2026. The applicant consequently invoked the High Court’s jurisdiction under Section 528 BNSS.

Whether the High Court could interfere under Section 528 BNSS with the Trial Court’s rejection of an application under Section 348 BNSS/Section 311 Cr.P.C. seeking recall of a bank witness?

Whether the proposed recall of the bank witness and production of bank records relating to presentation and dishonour of the cheque were essential for a just decision in the complaint under Section 138 of the Negotiable Instruments Act, or merely an attempt to fill a lacuna and delay the proceedings?

Section 348 BNSS substantially incorporates the power under Section 311 Cr.P.C. to summon, examine or recall a witness at any stage of an inquiry or trial where the evidence appears essential for a just decision; the power is wide but cannot be exercised arbitrarily or merely to enable a party to fill a deliberate lacuna.

Section 528 BNSS preserves the High Court’s inherent jurisdiction to prevent miscarriage of justice. In Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, the Supreme Court held that an omission at an earlier stage does not bar recall where the evidence is necessary for a just decision. Natasha Singh v. CBI (State), (2013) 5 SCC 741, reaffirmed the wide power under Section 311 Cr.P.C. to secure essential evidence at any stage. Mannan Shaikh v. State of West Bengal, (2014) 13 SCC 59, emphasized that discovery of truth and just adjudication are the ultimate objectives of criminal proceedings.

The High Court held that the bank witness was not a new or unrelated witness, but the competent official who had already been examined. The requested records—comprising the bank register, cheque-presentation particulars, dishonour/return particulars and connected official documents—were directly relevant to the foundational facts of the Section 138 prosecution.

Although the complainant’s failure to object earlier could be considered while assessing bona fides, procedural omission could not override the Court’s duty to consider material evidence necessary for a just decision. The Court distinguished the correction of an inadvertent omission from filling a deliberate lacuna.

Any prejudice to the respondent could be avoided by limiting the recall to the specified banking records and granting him a full opportunity to cross-examine the witness. Concerns regarding delay and repeated summoning could likewise be addressed by permitting only one effective opportunity and directing expeditious examination.

The order dated 24 March 2026 was set aside, and the application under Section 311 Cr.P.C./Section 348 BNSS was allowed.

The Trial Court was directed to recall the concerned Branch Manager/competent authority of State Bank of India, Nagpur Road Branch, strictly for production and proof of the relevant bank register, cheque-presentation details, dishonour/return particulars and connected official records. The complainant was not permitted to introduce a new case through the recall; the respondent was to receive a full opportunity to cross-examine and raise all lawful objections. The recall was to occur on a proximate date without unnecessary adjournments, with the applicant bearing any reasonable expenses occasioned by it.