Gauhati High Court
Page No.# 1/5 vs Kiran Thapa on 22 August, 2025
Page No.# 1/5
GAHC010130672025
2025:GAU-AS:11324
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./219/2025
BIRAJ SARMAH DHITAL ALIAS BIRAJ SHARMA DHITAL
S/O BHUBAN CHANDRA DHITAL SHARMA
R/O HASTINAPUR, P.O. AMERIGOG, P.S. BASISTHA, IN THE DISTRICT OF
KAMRUP (M), ASSAM, PIN-781014
VERSUS
KIRAN THAPA
S/O JANG BD. THAPA,
R/O DEVKOTA NAGAR, MALIGAON,
P.S. JALUKBARI IN THE DISTRICT OF KAMRUP (M), ASSAM
Advocate for the Petitioner : MR. B KONWAR, MS D DUTTA
Advocate for the Respondent : MR S DEWRI , MR H BORAH,MR A DEKA
BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
JUDGMENT & ORDER (CAV)
Date : 22-08-2025
1. Heard Mr. B. Konwar learned counsel for the revision
petitioner. Also heard Mr. S. Dewri, learned counsel for the
respondent.
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2. The petitioner, herein who as accused is facing a
proceeding before the learned Court below under Section 138 of the
N.I Act, 1881 (hereinafter the Act), is challenging the impugned
order dated 31.05.2025, passed by the learned JMFC No.4,
Kamrup(M), Guwahati, rejecting the application of the
petitioner/accused seeking to call some additional witnesses in
exercise of powers of the Section 311 Cr.PC.
3. The learned counsel for the revision petitioner has stated
and submitted that there was a transaction of Rs.50,000/- between
the parties which the petitioner claims to have returned. However, at
the time of transaction, three security cheques were given by him
and he contends that misusing one of them, the instant proceeding
has been filed seeking Rs.7,00,000/- for him. He contends that he
never borrowed such money from the complainant. The complainant
impleaded as respondent no.2 has entered appearance.
4. The primary contention of the petitioner/accused is that
after the closure of evidence, he has discovered certain facts and
that there is one person, who had issued a notice on the instruction
of the complainant with regard to alleged dishonor of a cheque of
Rs. 3,00,000/- (Rupees Three Lakhs) only.
5. It is contended that however, with regard to the said
dishonour, the respondent/complainant never initiated any
proceeding under 138 of the Act; further contending that transaction
was also by way of misusing one of the security cheques.
6. It is contended in this backdrop, that the testimony of that
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witness is essential in support of his contention that the present
proceeding before the trial court has been initiated by misusing one
of the security cheques even though the petitioner/accused has
returned the actual amount, which he had borrowed. The
contentions have been narrated in para 8 of this petition.
7. The learned counsel for the respondent/complainant
submits that the petition filed by the accused was nothing but an
attempt to delay the proceeding and cover up lacunae in the case
and that the learned trial court rightly dismissed the same and
therefore, there is no merit in this criminal revision petition.
8. I have perused the materials and considered the
submissions.
9. The case is at the stage of final argument and that was
one of the main reasons why the learned trial court was not inclined
to allow the petition under Section 311 Cr.PC [Section 348 BNSS].
10. I have perused the judgment placed by the petitioner’s side
namely, Biraj Sarmah Dhital @ Biraj Sharma Dhital, Varsha Garg Vs.
State of Madhya Pradesh and others, reported in (2023) 19 SCC 646 –
Upon perusing the said judgment, two of the important principles
that emerged are that –
(i) essentiality of evidence of the person whose
to be examined coupled with the need for just decision of
the case constitutes the touchstone, which must guide the
decision of the Court [Para 32].
(ii) the power of the Court is also not
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constrained by the closure of evidence [para 36].
11. It is well settled that powers under Section 311 Cr.PC
[Section 348 BNSS] can be exercise at any stage, if the Court
considers it necessary in the interest of justice.
12. The primary duty of trial court is to find the truth and the
principles which have emanated from Section 311 Cr.PC [Section 348
BNSS] are to assist that exercise of finding the truth and therefore,
they can be invoked at any time even at the fag end of the trial
provided sufficient justification appeals to the judicial conscience of
the Court.
13. Coming to this instant case, the primary contention of the
petitioner is misuse of security cheques as has emerged from his
contentions from the revision petition. The additional witness sought
to be examined is stated to be a person who issued the notice to the
petitioner on the instructions of the complainant with regard to
another cheque of Rs. 3,00,000/- (Rupees Three Lakhs) stated to
have bounced; but for which the complainant never took re-course
to Section 138 of the Act.
14. The petitioner seeks to use this aspect to support his case
that the cheque pertaining to the complaint proceeding undergoing
trial was also such an exercise of misusing one of the security
cheques. Therefore, I hold that examination of this additional person
as witness would facilitate the exercise of finding the truth of the
matter and therefore, the powers under Section 311 Cr.PC [Section
348 BNSS] can be exercised for the same.
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15. However, apart from mentioning in the prayer about
recalling the complainant and DW-1 also, under Section 311 Cr.PC –
the petitioner has not stated any reasons. I did not notice the
contentions in support of the prayer for recalling DW-1 and the
complainant for examination. Therefore, I hold that PW has not
made out sufficient case for exercising 311 Cr.PC to recall
complainant and DW-1.
16. Thus, I find partial merit in this case and the impugned
order dated 31.05.2025, passed by the learned JMFC, Kamrup(M),
Guwahati is partly set aside and the prayer of the petitioner/accused
to re-call the additional witness with regard to the other notice
stated to have been sent by the complainant is allowed in exercise
of powers under Section 348 BNSS.
17. The party shall appear before the learned trial court on
15.09.2025 whereupon the petitioner/accused shall submit an
application narrating the particulars of the additional witness, who
then shall be summoned in exercise of powers under Section 348
BNSS. There should be no delay in the proceeding at the behest of
either side, especially the petitioner/accused.
18. Accordingly, the instant criminal revision petition stands
partly allowed and disposed of on the aforesaid terms.
JUDGE
Comparing Assistant
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