1. This petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking to set aside the order dated 20.09.2024 in Crl.M.P. No. 502 of 2024 in STC No.649 of 2021 on the file of VI Addl. Junior Civil Judge-cum-VI Addl. Metropolitan Magistrate at LB Nagar, R. R. District. The petitioner is arrayed as accused herein.
2. Heard Mr. J.C. Fransis, learned Counsel for the petitioner, and Mr. Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor, representing the respondent-State.
3.1. The relevant facts, in brief, are that, during the course of cross-examination of the respondent/complainant as PW-1, questions were put to him regarding the reflection of the complaint transaction in his income-tax returns, with a view to challenging the complainant’s financial capacity and the genuineness of the transaction. The complainant stated that he would produce the relevant records, if required. Thereafter, the petitioner filed Crl.M.P. No. 123 of 2023 under Section 91 of the Cr.P.C., seeking production of the complainant’s income-tax returns. The said application was dismissed, and the order was subsequently confirmed in revision.
3.2. Subsequently, the petitioner filed Crl.M.P. No. 502 of 2024 under Section 311 of the Cr.P.C., seeking issuance of summons to the complainant/PW-1 to produce his bank account and income-tax account details and, thereafter, to summon the concerned Income Tax Officer for production of the relevant income-tax records. The petitioner contended that the said material was necessary for effectively rebutting the statutory presumption arising under Section 139 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’). The learned Magistrate, however, dismissed the said application. Aggrieved by the said order, the present petition has been filed seeking to set aside the order passed by the learned Magistrate and to permit the petitioner to secure and place on record the aforesaid evidence in support of his defence.
4.1. Learned counsel for the petitioner contends that the learned Magistrate failed to appreciate that the presumption under Section 139 of the N.I. Act is rebuttable and that the accused is entitled to place relevant and legally admissible material on record to establish, inter alia, the absence of consideration and to challenge the complainant’s financial capacity to advance the alleged amount. It is submitted that the complainant’s financial capacity, source of funds, and income-tax returns were specifically put in issue during cross-examination and, therefore, the income-tax records sought to be summoned are directly relevant to the petitioner’s defence and to his right to rebut the statutory presumption.
4.2. It is further contended that rejection of the application deprives the petitioner of an effective opportunity to lead rebuttal evidence and causes serious prejudice to his defence. The petitioner asserts that he is entitled to summon the concerned Income Tax Officer and secure the relevant income-tax returns and other records pertaining to the complainant, particularly when such material has a direct bearing on the complainant’s financial capacity and the alleged source of funds. It is also contended that the earlier dismissal of Crl.M.P. No.123 of 2023 cannot operate as a permanent bar to the subsequent application in Crl.M.P. No.502 of 2024, as the principle of res judicata, in its strict civil-law sense, does not operate so as to foreclose an accused from seeking to produce relevant defence evidence in criminal proceedings. According to the petitioner, the subsequent application is intended to secure evidence necessary for a fair and effective adjudication of the defence and, therefore, ought to have been considered on its own merits.
4.3. Learned counsel for the petitioner would further submit that the absence of any reference to the complainant’s financial capacity or income-tax returns in the reply to the statutory notice cannot, by itself, disentitle the petitioner from raising such a defence during the course of the proceedings. It is contended that there is no mandatory requirement under Section 138 of the N.I. Act that every defence subsequently relied upon by the accused must necessarily have been disclosed in the statutory notice. It is further submitted that the petitioner is not required to establish his defence only by entering the witness box and that he is entitled to rely upon the material elicited during cross-examination as well as upon other legally admissible evidence for the purpose of rebutting the statutory presumption. The petitioner therefore contends that the impugned order has denied him a fair and effective opportunity to place relevant defence evidence on record and has caused serious prejudice to his defence. Accordingly, the petitioner seeks interference with the impugned order and prays that the complainant/P.W.1 be recalled and directed to furnish the relevant bank-account details and income-tax particulars, whereafter the concerned Income Tax Officer may be summoned to produce the relevant income-tax returns and other records pertaining to the complainant.
5. Despite due service of notice, respondent No.1/complainant did not enter appearance or contest the petition.
6. I have carefully considered the submissions and perused the material available on record.
7. The prayer of the petitioner is to recall the complainant/P.W.1 and direct him to produce his bank-account statements and income-tax details, and thereafter to summon the concerned Income Tax Officer to produce the relevant income-tax records and details of the complainant.
8. Section 311 of the Code of Criminal Procedure empowers the Court, at any stage of an inquiry, trial, or other proceeding, to summon any person as a witness, examine any person present in Court, or recall and re-examine a person already examined, if his evidence appears to the Court to be essential for the just decision of the case. The provision undoubtedly confers wide discretion upon the Court. However, the width of such power does not mean that every application filed under Section 311 Cr.P.C. is required to be allowed. The controlling consideration is whether the evidence sought to be brought on record is essential for the just decision of the case. It is settled proposition that recall of a witness cannot be permitted merely for the asking. While exercising the power under Section 311 Cr.P.C., the Court is required to consider, among other factors, the bona fides of the application, the necessity of the proposed evidence, the prejudice that may be caused to either side, the possibility of delay, and the requirement of a fair adjudication. At the same time, the power under Section 311 Cr.P.C. is intended to enable the Court to discover the truth and arrive at a just decision. Therefore, the expression “lacuna” cannot be applied mechanically so as to defeat the production of genuinely necessary evidence. The Hon’ble Supreme Court has also recognised the broad and salutary purpose underlying the provision in a catena of decisions. The question, therefore, is not merely whether the income-tax returns or bank statements may be useful to the defence, but whether their production has been demonstrated to be essential for the just decision of the present complaint.
9. In the present case, the accused principally relies upon the statement made by PW-1 during cross-examination that the transaction in question was reflected in his income-tax returns and that the relevant returns could be produced, if necessary. Such a statement is undoubtedly a matter which the accused is entitled to rely upon during the course of the trial. However, the said statement, by itself, does not confer an unconditional right upon the accused to summon the complainant or to call for his entire income-tax records or bank accounts. The accused was at liberty to cross-examine P.W.1 with regard to the alleged transaction, the source of funds, his financial capacity, the manner in which the alleged amount was paid, and the alleged disclosure of the transaction in his income-tax returns. The law relating to financial capacity in prosecutions under the N.I. Act also does not justify an unrestricted or roving inquiry into the complainant’s financial affairs.
10. At the same time, the Hon’ble Supreme Court has held that the complainant is not required, in every case and at the threshold, to establish his financial capacity. Nevertheless, where the accused raises a genuine and specific challenge to the complainant’s financial capacity to advance the alleged amount, the accused is entitled to demonstrate that the complainant lacked the requisite capacity. Such a defence may be established by relying upon material produced by the complainant or through effective cross-examination of the complainant and his witnesses. Thus, the law recognises the accused’s right to raise and establish a genuine defence concerning the complainant’s financial capacity. However, such right does not translate into an automatic entitlement to call for all confidential financial records of the complainant. The Court is required to strike a balance between the accused’s right to establish a probable defence and the need to prevent a roving or fishing inquiry into the complainant’s financial affairs.
11. In the case on hand, the accused had earlier sought production of the complainant’s income-tax returns under Section 91 Cr.P.C. The said application was dismissed, and the order was also confirmed in revision. The subsequent application under Section 311 Cr.P.C. does not disclose any changed circumstance or otherwise demonstrate why the records which were earlier found unnecessary have subsequently become essential for the just decision of the case. The subsequent application also seeks production of the bank and income-tax records in broad and general terms. It does not identify with sufficient precision the particular assessment year, specific bank transaction, account statement, or other document which is indispensable for determining any particular ingredient of the alleged offence. A mere possibility that the records may disclose some contradiction or assist the defence in impeaching or testing the complainant’s testimony cannot, by itself, satisfy the statutory requirement of necessity under Section 311 Cr.P.C. It is also relevant that Section 311 Cr.P.C. cannot be utilised as an indirect means of reopening an issue which has already been considered in an earlier application under Section 91 Cr.P.C., particularly in the absence of any changed factual circumstance or any subsequent development demonstrating the necessity of the proposed evidence. This, however, does not mean that the accused is prevented from establishing his defence. The accused remains entitled to rely upon legally admissible material, to cross-examine the complainant regarding his financial capacity and source of funds within the permissible scope of law, and to adduce such other legally admissible defence evidence as may otherwise be available to him. In the present case, the cross-examination of P.W.1 has already been completed.
12. Having regard to the facts presently borne out by the record, this Court is of the considered view that the petitioners/accused have failed to establish that production of the complainant’s entire income-tax returns and bank records is essential for the just decision of the complaint. The learned Trial Court, therefore, cannot be said to have exercised its jurisdiction outside the parameters of Section 311 Cr.P.C. No perversity, patent illegality, material irregularity, or jurisdictional error has been demonstrated warranting interference by this Court in exercise of its jurisdiction in the present petition.
13. Accordingly, the petition is dismissed. The impugned order dated 20.09.2024 passed in Crl.M.P. No.502 of 2024 in S.T.C. No.649 of 2021 on the file of the VI Additional Junior Civil Judge-cum-VI Additional Metropolitan Magistrate, L.B. Nagar, R.R. District, is affirmed.
Pending miscellaneous applications, if any, shall stand closed.
