Delhi High Court Allows Witness Recall to Prove Late Promissory Note in Cheque Bounce Case; Holds Delay Alone Cannot Bar Relevant Evidence Under Section 311 CrPC
Delhi High Court Upholds Late Production of Promissory Note in NI Act Case; Says Section 311 Enables Relevant Evidence Until Trial Reaches Judgment
Facts
The Delhi High Court considered a petition under Section 482 CrPC filed by SRS Infratech Pvt. Ltd. and another, challenging the Additional Sessions Judge’s judgment dated 25 March 2023, which had affirmed an order of the Metropolitan Magistrate permitting recall of a witness under Section 311 CrPC.
The underlying proceedings arose from a complaint filed by late Shyam Chaudhary under Section 138 of the Negotiable Instruments Act, 1881. According to the complainant, Petitioner No. 1, acting through Petitioner No. 2, had borrowed ₹25 lakh under a loan agreement dated 16 November 2009. After Shyam Chaudhary died during the proceedings, his legal representatives were substituted as complainants.
The petitioners denied the loan transaction. Their defence was that the cheque had been issued merely as security for a proposed forward sale of the complainant’s property, which ultimately did not materialise.
By the relevant stage, the complainant’s witness had already been examined and discharged, the accused’s statement had been recorded, and Petitioner No. 2 had entered the witness box and been cross-examined in defence.
During defence evidence, the respondents sought to introduce a promissory note dated 16 November 2009. They claimed that the deceased complainant’s legal representatives had subsequently discovered the document. An application accompanied by an additional affidavit and the promissory note had originally been filed on 19 February 2020.
That application was subsequently withdrawn on 10 November 2021. In September 2022, however, the respondents moved a fresh application under Section 311 CrPC seeking recall of Ms. Kavita Chowdhary to bring the promissory note into evidence.
The Trial Court allowed the application on 17 October 2022, holding that Section 311 conferred ample power to recall a witness where necessary for a just decision and that the accused would suffer no prejudice because they could cross-examine the witness concerning the promissory note.
The ASJ dismissed the petitioners’ revision but imposed ₹10,000 costs upon the respondents for the delay.
Issues
The principal issue before the High Court was whether, at the advanced stage reached by the Section 138 proceedings, Ms. Kavita Chowdhary could be recalled under Section 311 CrPC for the limited purpose of bringing the promissory note dated 16 November 2009 into evidence.
The Court also considered:
- Whether Section 311 could be invoked after complainant evidence had concluded and the defence had already been disclosed.
- Whether introducing the promissory note constituted impermissible filling of a lacuna in the complainant’s case.
- Whether the earlier withdrawal of the application seeking to place the promissory note on record barred a subsequent Section 311 application under Section 362 CrPC.
- Whether a document whose genuineness is disputed can nevertheless be produced and marked in evidence under Section 294 CrPC.
- Whether marking the promissory note as an exhibit amounted to acceptance of its execution or genuineness.
- Whether recalling the witness at such a late stage caused legally impermissible prejudice to the accused.
Petitioners’ Arguments
The petitioners argued that the promissory note was being introduced at an impermissibly belated stage, after complainant evidence had closed, the accused had disclosed their defence and Petitioner No. 2 had already entered the witness box.
They contended that the respondents had previously attempted to bring the same document on record but withdrew their application after arguments on 10 November 2021. Permitting substantially the same relief through Section 311, they argued, amounted to a prohibited review contrary to Section 362 CrPC.
The petitioners further argued that the Section 311 application did not explain why the document had not been produced earlier or why its production was essential for a just decision.
They specifically disputed the promissory note and relied upon Section 294(3) CrPC to argue that a disputed document could not simply be marked and read in evidence without formal proof.
Respondents’ Arguments
The respondents submitted that the controversy concerned only one identified document, namely the promissory note dated 16 November 2009, which the legal representatives allegedly discovered after the original complainant’s death.
They emphasised that the document had not suddenly appeared in September 2022. It had already been sought to be placed on record through an additional affidavit filed on 19 February 2020.
The earlier application had merely been withdrawn and had never been rejected on merits. There was no finding that the promissory note was inadmissible, forged or otherwise incapable of proof.
They further submitted that recalling Ms. Kavita Chowdhary would cause no irreparable prejudice because the petitioners would have a full opportunity to cross-examine her and challenge the document’s execution, genuineness and evidentiary value.
Analysis of the Law
Section 311 CrPC Confers Wide Power at Any Stage
The Court held that Section 311 is deliberately couched in wide terms.
It permits a criminal court, at any stage of an inquiry, trial or proceeding, to summon, recall or re-examine a witness. Where the evidence appears essential to the just decision of the case, exercise of that power becomes mandatory.
The jurisdiction belongs to the Court itself and does not depend solely upon whether the application filed by a party contains a perfect or exhaustive explanation.
Indeed, Section 311 permits the Court to summon or recall a witness suo motu. The real inquiry is whether the proposed evidence is germane to the controversy and necessary for just adjudication without causing unfair prejudice.
Advanced Stage of Trial Is Not an Absolute Bar
The High Court accepted that the stage at which additional evidence is sought is relevant.
However, it held that the stage of proceedings is “not by itself determinative.”
Section 311 can operate even after evidence has closed where the proposed material is genuinely relevant to a just decision.
The Court therefore rejected the proposition that completion of complainant evidence or commencement of defence evidence automatically extinguishes the Trial Court’s statutory power.
Filling a Lacuna vs Correcting an Omission
The Court drew an important distinction between:
an inherent lacuna in a party’s case, and
an omission to produce otherwise relevant material.
Section 311 cannot be used to fundamentally change a party’s case or enable it to construct an entirely new case after learning the opponent’s defence.
However, an omission to produce material that is genuinely connected with the existing controversy does not become incurable merely because the trial has progressed.
Here, the promissory note was not a newly invented piece of evidence introduced only after the petitioners disclosed their defence.
It had already been placed before the Trial Court in February 2020 and was asserted to concern the same ₹25 lakh transaction and bear the same date—16 November 2009—as the loan agreement.
Alleged Forgery Does Not Require Threshold Exclusion
The petitioners disputed the promissory note and alleged that it was forged or fabricated.
The High Court held that such an allegation did not justify excluding the document before the evidentiary process could take place.
At the Section 311 stage, the Court is not required to finally determine whether the proposed document is truthful, genuine or ultimately reliable.
The petitioners remained entitled to:
- dispute execution;
- challenge the explanation for its late discovery;
- cross-examine the witness;
- dispute genuineness;
- raise objections to admissibility; and
- challenge its evidentiary value.
Those questions were matters for the Trial Court to determine after evidence.
Earlier Withdrawal Did Not Attract Section 362 CrPC
The Court rejected the argument that entertaining the Section 311 application amounted to an impermissible review.
The earlier application had merely been withdrawn at the complainant’s request.
There had been no adjudication concerning the genuineness, admissibility or evidentiary value of the promissory note.
Section 362 prohibits alteration or review after a court has signed its judgment or final order disposing of a case.
Since the 10 November 2021 order contained no determination on merits and was not a final disposal of the case, there was nothing capable of being “reviewed” by the later Section 311 order.
Section 294 CrPC: Marking Is Not Proof
The Court also rejected the petitioners’ interpretation of Section 294(3).
Section 294 distinguishes between production of a document and dispensation with formal proof.
Where genuineness is admitted, formal proof can be dispensed with. Where genuineness is denied, however, the document does not become inadmissible merely because it is disputed—the party relying upon it must prove it according to law.
Accordingly, the mere fact that the promissory note was marked Ex. CW-1/7 did not establish its execution, genuineness or contents.
This is an important evidentiary distinction:
Marking a document as an exhibit ≠ proving the document.
Precedent Analysis
Rajaram Prasad Yadav v. State of Bihar & Anr.
The Supreme Court held that the Court must satisfy itself that recall or examination is genuinely essential to arrive at a just decision.
Additional evidence should be germane to the controversy, and the opposing party must receive a fair opportunity of rebuttal.
The High Court treated these principles as the governing framework for Section 311.
P. Chhaganlal Daga v. M. Sanjay Shaw
This precedent was particularly important because it also arose from a Section 138 NI Act prosecution.
There, additional documentary evidence was sought even after examination, cross-examination and re-examination had concluded and the matter had reached the stage of judgment.
The Supreme Court nevertheless permitted Section 311 to operate and rejected the proposition that every late attempt to introduce evidence necessarily amounted to filling a lacuna.
The Delhi High Court applied this principle to hold that substantial delay was not an absolute bar.
Rajendra Prasad v. Narcotic Cell
The Supreme Court distinguished an inherent lacuna from an oversight or mistake in producing relevant evidence.
The latter does not automatically become an incurable defect merely because a party seeks to correct it later in the proceedings.
Harbhajan Lal Nayyar v. State
The petitioners relied upon this decision, but the High Court distinguished it.
There, after the prosecution and defence evidence had concluded and the case reached final arguments, 24 additional witnesses were sought to be examined without sufficient material showing why they were essential.
Here, by contrast, only one identified witness concerning one specific document connected with the underlying transaction was involved.
Ram Jeet v. State
This authority did not assist the petitioners because it recognised that a criminal trial continues until pronouncement of judgment and that fresh evidence may be received up to that stage.
Naveen Panchal v. State (NCT of Delhi)
The Court relied upon this decision while interpreting Section 294 CrPC.
Where a document is admitted, formal proof can be dispensed with. Where it is denied, the party relying upon the document must prove its genuineness in accordance with law.
VE Commercial Vehicles Ltd. v. Sunil Kapoor
The Court also referred to this recent Delhi High Court decision reiterating that Section 311 confers wide discretion exercisable “at any stage”, although the power must be exercised judicially and with circumspection.
Court’s Reasoning
The Court found that this was not a case where the complainants were seeking to fundamentally reconstruct their case after seeing the defence.
Several factors were decisive:
- Only one identified promissory note was involved.
- The document allegedly related directly to the same ₹25 lakh transaction forming the subject matter of the Section 138 complaint.
- It had already been sought to be placed on record in February 2020.
- The earlier application had been withdrawn without any adjudication on merits.
- The petitioners retained a complete opportunity to cross-examine the witness and challenge the document.
- Marking the document did not establish its genuineness.
- Its alleged fabrication remained an issue to be proved or disproved at trial.
The Court therefore held that the appropriate safeguard against prejudice was not to exclude potentially relevant evidence merely because it was produced late, but to give the opposite party a complete opportunity to challenge and rebut it.
Conclusion
The Delhi High Court found no ground to exercise its inherent jurisdiction under Section 482 CrPC to interfere with the orders permitting recall of Ms. Kavita Chowdhary and introduction of the promissory note.
The Court expressly clarified that permitting the promissory note to be brought on record and marked as Ex. CW-1/7 did not amount to accepting its genuineness, execution, admissibility or evidentiary value.
The petitioners remained free to cross-examine the witness and raise every available objection concerning the document.
Accordingly, the petition was dismissed, interim protection was vacated, and the Trial Court was directed to proceed expeditiously, considering the age of the Section 138 complaint.
Case Details
Case: SRS Infratech Pvt. Ltd. & Anr. v. Kumud Chaudhary & Ors.
Court: High Court of Delhi at New Delhi
Case Number: CRL.M.C. 4753/2023 & CRL.M.A. 18166/2023; CNR No. DLHC010264102023
Judge: Justice Madhu Jain
Date: 13 August 2026
Result: Petition dismissed; recall of witness and production of promissory note upheld, subject to formal proof and the accused’s right to challenge its genuineness, admissibility and evidentiary value.
