Section 311 CrPC cannot be misused to derail proceedings as Delhi High Court dismisses plea to recall complainant in cheque bounce case citing lethargic conduct and miscarriage of justice
Safiya Malik
The High Court of Delhi, Single Bench, of Justice Ravinder Dudeja, delivered judgment on April 17, 2025, affirming the trial court's decision that denied the petitioners' application to recall the complainant for cross-examination under Section 311 of the Code of Criminal Procedure (CrPC). The court stated that the recall of the witness was not warranted and dismissed the petition challenging the trial court's order.
The judgment stems from a case involving allegations under Section 138 of the Negotiable Instruments Act, 1881, concerning the dishonour of four cheques issued by the petitioners which were returned with the bank remark "account closed/transferred to." Despite service of legal demand notices, no payment was made, prompting the complainant to initiate criminal proceedings. The trial court had issued summons to the accused and completed various stages of the proceedings, including the statement under Section 313 CrPC and closure of defence evidence.
The petition was filed under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023, assailing the order passed by the JMFC, Patiala House Court, New Delhi, in Complaint Case No. 29052/2016. The complaint was instituted by Gemalto Digital Security Pvt. Ltd. (later renamed Thales Dis India Pvt. Ltd.) against Hippocampus Infotech Pvt. Ltd. and others for cheque dishonour.
The complainant alleged that four cheques issued by the petitioners to discharge their liability were dishonoured as per bank return memos dated May 20, 2015. Demand notices dated June 2, 2015, and June 20, 2015, were sent, but no payment was made. The petitioners were summoned on August 20, 2015, and served notice under Section 251 CrPC on May 28, 2019.
The petitioners' application under Section 145(2) of the NI Act was allowed, leading to listing of the case for cross-examination of the complainant. However, the complainant's evidence was eventually closed on May 24, 2023. The petitioners' statements under Section 313 CrPC were recorded on September 20, 2023. Defence evidence was closed on January 16, 2024.
Subsequently, the petitioners filed an application under Section 311 CrPC seeking recall of the complainant for cross-examination and to lead defence evidence, citing the health issues of their previous counsel who allegedly could not appear due to Diabetic Retinopathy.
The respondent concurrently filed an application to reflect the change of name from Gemalto Digital Security Pvt. Ltd. to Thales Dis India Pvt. Ltd., which was allowed on June 27, 2024.
The trial court dismissed the petitioners' application under Section 311 CrPC on July 20, 2024, citing misuse of the provision and lack of substantiation regarding the previous counsel's illness.
The High Court analysed the legal scope and judicial principles under Section 311 CrPC, noting that the provision empowers courts to summon, examine, or recall any witness if it is essential for a just decision. However, it stated that this power is discretionary and must be exercised with caution and judicial circumspection.
Justice Ravinder Dudeja recorded:
"Section 313 Cr. PC is a salutary provision... aimed at empowering the court to find out the truth and to render a just decision... Such power is discretionary and is to be exercised only for strong and valid reasons and with caution and circumspection."
The court relied on precedents, including:
- Vijay Kumar v. State of U.P., (2011) 8 SCC 136
- State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402
- Ratanlal v. Prahlad Jat, (2017) 9 SCC 340
- Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086
Quoting Ratanlal, the court stated:
"Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order."
Further quoting from Zahira Habibullah Sheikh (5) v. State of Gujarat, the judgment noted:
"The object underlying Section 311... is that there may not be failure of justice on account of mistake of either party... The determinative factor is whether it is essential to the just decision of the case."
The court observed that multiple opportunities had been granted to the petitioners to cross-examine the complainant. Despite this, the accused did not appear regularly, prompting issuance of non-bailable warrants.
"The conduct of the petitioner during the trial was lethargic... several adjournments were granted... The trial court had rather been lenient with the petitioner... Mere change of name of respondent entity would not confer any fresh right of cross-examination of respondent no.2."
On the explanation regarding the previous counsel's illness, the court noted:
"Petitioners tried to place entire burden on the shoulder of the previous counsel... The trial court observed that no medical document of the previous counsel was placed on record to support the version of the accused."
It concluded that permitting recall under such circumstances would amount to misuse of Section 311 CrPC.
"The provisions of Section 311 Cr. PC cannot be allowed to be misused by the petitioners to derail the proceedings or to cause inconvenience to the other party as the same would amount to miscarriage of justice."
The High Court dismissed the petition stating: "In view thereof, I find no infirmity in the impugned order dated 20.07.2024. The petition is devoid of any merit. Accordingly, the petition is dismissed along with pending applications, if any."
Advocates Representing the Parties:
For Petitioners: Mr. Praveen Singh, Mr. Ajay Sharma, Mr. Durgesh Nandini
For Respondents: Mr. Aman Usman (APP), Mr. Amitabh Narendra, Mr. Mridul Chakravarty, Mr. Chetan Garg, Mr. Indrayudh Chowdhury
Case Title: Hippocampus Infotech Private Ltd and Anr v. State NCT of Delhi and Anr
Neutral Citation: 2025: DHC:2620
Case Number: CRL.M.C. 7567/2024
Bench: Justice Ravinder Dudeja
[Read/Download order]
