Application under Section 482 Cr.P.C. filed to quash trial court order dismissing Section 311 application. Court held no need to summon witnesses regarding fund source in cheque cases as complainant need not prove that under Section 138 NI Act.
Application under Section 482 of Cr.P.C. dismissed as lacking merit; interim order vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No. 1250 of 2010
Murtaza Ali……. Applicant versus Aslam ……. Respondent
Mr. K.S. Verma and Mr. R.K.S. Verma, Advocates for the applicant. Mr. M.K. Goyal, Advocate for the respondent.
U.C. Dhyani, J. (oral)
The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash and set aside the order dated 14.07.2010, passed by learned trial court as well as order dated 22.11.2010, passed by III F.T.C. / Addl. Sessions Judge, Haridwar, in criminal revision no. 254 of 2010. A prayer has also been made that the learned trial court be directed to record the evidence of the witnesses Salamuddin and Mahmood Hasan.
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Section 311 of Cr.P.C. for examining his witnesses, namely, Salamuddin and Mahmood Hasan, whose names were mentioned in the complaint. Learned trial court dismissed such application of the complainant under Section 311 of Cr.P.C. The reasons assigned for dismissal of such application were (a) such an application was moved in the final stages of the proceedings when the case was fixed for arguments (b) sufficient opportunities were already given to the complainant to lead the evidence for a considerable period of time (c) such an application, if allowed, will delay the disposal of the case and (d) such application was devoid of merits.
“ 311. Power to summon material witness, or
examine person present . – Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or
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examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
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is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt: (iii) cheque so issued had been returned due to insufficiency of funds.
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collected the money and in whose presence he gave such money to the accused.
Dt. March 06, 2014. Negi
2 issues framed by the court
Whether a cheque complaint under Section 138 NI Act requires proof of the source of funds or presence during payment.
Whether there was justification for summoning witnesses regarding the source of funds under Section 311 Cr.P.C. in a cheque case.
5 provisions across 2 enactments
Murtaza Ali
Aslam
U.C. Dhyani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
