Delhi High Court
Kailashpati Polyplast Pvt Ltd vs Raghav Industries on 4 August, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~54 to 57 & 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th August, 2025
+ CRL.M.C. 5131/2025, CRL.M.A. 22197/2025 (stay)
KAILASHPATI POLYPLAST PVT LTD .....Petitioner
Through: Mr. Sourabh Gupta, Mr. Puneet Yadav
and Mr. Vasu Dev, Advocates.
versus
RAGHAV INDUSTRIES .....Respondent
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur,
Mr. Kshitij Joshi, Mr. Aryan Kumar,
Ms. Nandita Sharma and Ms. Rashi
Singh, Mr. Mayank Maini and Mr.
Ankit Verma, Advocates.
55
+ CRL.M.C. 5145/2025, CRL.M.A.22289/2025 (stay)
KAILASHPATI POLYPLAST PVT LTD .....Petitioner
Through: Mr. Sourabh Gupta, Mr. Puneet Yadav
and Mr. Vasu Dev, Advocates.
versus
RAGHAV INDUSTRIES .....Respondent
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur,
Mr. Kshitij Joshi, Mr. Aryan Kumar,
Ms. Nandita Sharma and Ms. Rashi
Singh, Mr. Mayank Maini and Mr.
Ankit Verma, Advocates.
56
+ CRL.M.C. 5146/2025, CRL.M.A.22291/2025 (stay)
KAILASHPATI POLYPLAST PVT LTD .....Petitioner
Through: Mr. Sourabh Gupta, Mr. Puneet Yadav
and Mr. Vasu Dev, Advocates.
versus
RAGHAV INDUSTRIES .....Respondent
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur,
Mr. Kshitij Joshi, Mr. Aryan Kumar,
CRL.M.C. 5131/2025 & connected Page 1 of 12
Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
Ms. Nandita Sharma and Ms. Rashi
Singh, Mr. Mayank Maini and Mr.
Ankit Verma, Advocates.
57
+ CRL.M.C. 5173/2025, CRL.M.A. 22361/2025 (stay)
KAILASHPATI POLYPLAST PVT LTD .....Petitioner
Through: Mr. Sourabh Gupta, Mr. Puneet Yadav
and Mr. Vasu Dev, Advocates.
versus
RAGHAV INDUSTRIES .....Respondent
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur,
Mr. Kshitij Joshi, Mr. Aryan Kumar,
Ms. Nandita Sharma and Ms. Rashi
Singh, Mr. Mayank Maini and Mr.
Ankit Verma, Advocates.
7
+ CRL.M.C. 5096/2025, CRL.M.A. 22031/2025 (stay)
KAILASHPATI POLYPLAST PVT LTD .....Petitioner
Through: Mr. Sourabh Gupta, Mr. Puneet Yadav
and Mr. Vasu Dev, Advocates.
versus
RAGHAV INDUSTRIES .....Respondent
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur,
Mr. Kshitij Joshi, Mr. Aryan Kumar,
Ms. Nandita Sharma and Ms. Rashi
Singh, Mr. Mayank Maini and Mr.
Ankit Verma, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CRL.M.A. 22288/2025 (Exemption) in CRL.M.C. 5145/2025
CRL.M.A. 22290/2025 (Exemption) in CRL.M.C. 5146/2025
1. Exemption allowed, subject to all just exceptions.
CRL.M.C. 5131/2025 & connected Page 2 of 12
Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
2. The Applications stand disposed of.
CRL.M.C. 5131/2025, CRL.M.A. 22197/2025 (stay)
CRL.M.C. 5145/2025, CRL.M.A.22289/2025 (stay)
CRL.M.C. 5146/2025, CRL.M.A.22291/2025 (stay)
CRL.M.C. 5173/2025, CRL.M.A. 22361/2025 (stay)
CRL.M.C. 5096/2025, CRL.M.A. 22031/2025 (stay)
3. Criminal Miscellaneous Petitions under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘B.N.S.S.’) read
with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.P.C.’) have been filed on behalf of the Petitioner, to
challenge the Order dated 21.07.2025 of the learned JMFC-04 (NIACT),
New Delhi, in Complaint Case bearing CT Case No. 5807/2019; CT Case
No. 5808/2019; CT Case No. 5809/2019; CT Case No. 5810/2019 and CT.
Case No. 5811/2019 under Section 138 of the Negotiable Instruments Act,
(hereinafter referred to as ‘N.I. Act‘) vide which his Application under
Section 311 of Cr.PC, has been dismissed.
4. Brief facts are that the Complainant had filed the aforesaid five
Complaints under Section 138 of N.I. Act against the Respondent, in regard
to the dishonour of five cheques, for Rs.5,00,000/- each issued by the
Respondent to the Petitioner/Company in discharge of its legal liability. The
Respondent was summoned and thereafter, Notice under Section 251 Cr.P.C.
was framed. Thereafter, respective parties had led their evidence.
5. According to the Petitioner/Complainant because of the contrary stand
taken by the Respondent/Accused in his Application under Section 145(2) of
N.I. Act in regard to service of Legal Notice, he was compelled to file First
Application under Section 311 Cr.P.C. for placing additional documents i.e.
CRL.M.C. 5131/2025 & connected Page 3 of 12
Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
Invoices and delivery receipts, etc. on record. The Respondent contested the
Application and the same was dismissed by the learned Trial Court on
21.07.2023.
6. Thereafter, the Complainant led the evidence and examined CW-1,
Mr. Priyank Garg (Authorised Representative of the Petitioner Company),
who was duly cross-examined by the Respondent on two dates. The evidence
of the Petitioner was closed on 15.05.2024. It is also stated that during the
course of proceedings, two of the witnesses were dropped from the list of
witnesses because the Respondent had admitted before the learned Trial
Court that one of the addresses out of the two mentioned on the Notice, were
correct and genuine.
7. The Statement of the Respondent was recorded under Section 313
Cr.P.C. wherein the Respondent stated that though the second address
mentioned on the legal Notice of Demand is correct, but the first address as
mentioned is not the complete address.
8. The Respondent thereafter, filed an Application under section 315
Cr.PC for leading defence evidence. The Respondent thus, appeared as
witness in his defence as DW-1 on 04.03.2025, who was duly cross-
examined by the Petitioner. In his cross-examination, he took a contradictory
stand that both the alleged addresses mentioned in the Complaint, were
incorrect. However, Legal Notice was duly served upon the Accused at the
given address, as per the Tracking Report already placed on record.
Moreover, the Respondent himself had admitted in his Statement under
Section 313 Cr.PC that one of the addresses mentioned in the Complaint, was
correct.
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
9. In view of the contradictions in the stand taken by the Respondent, the
Complainant filed his Application under Section 311 Cr.PC for calling
additional witness from Indian Postal Department along with the complete
postal record pertaining to the service of Legal Notice sent to the
Respondent.
10. The Application was allowed by this Court vide Order dated
22.04.2025 and the witness was permitted to be called from the Postal
Department. However, when the witness from the Postal Department
appeared before the learned JMFC, he stated that the relevant record has been
weeded out by the concerned Department.
11. Thereafter, the Petitioner/Complainant filed the Third Application
under Section 311 Cr.P.C. for placing on record the Certificate under Section
65B of the Indian Evidence Act (hereinafter referred to as ‘IEA’) in respect
of the Tracking Report, which could not be filed at the time of filing of the
Complaint, due to inadvertence. The copy of the said Certificate under
Section 65B of IEA was filed along with the Application under Section 311
Cr.PC. The Reply dated 05.07.2025 to the Application under Section 311
Cr.PC was filed by the Respondent.
12. The third Application under S.311Cr.P.C. got dismissed by the learned
Trial Court vide Order dated 21.07.2025.
13. Aggrieved by the said Order, it has been challenged on the grounds
that the learned Trial Court has committed grave error of law, which has
resulted in miscarriage of justice to the Petitioner. It is claimed that the
Judgment by this Court in the case of Ram Kishan vs. Emaar MGF
Construction Pvt. Ltd., (2024) SCC OnLine Delhi 4443, has been ignored
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
wherein it was observed that filing of the Certificate under Section 65B of
IEA, is the matter of procedure and not allowing the same to be taken on
record would be taking a hyper technical view, which is against the settled
proposition of law.
14. Reliance has also been placed on Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal, (2020) 7 SCC wherein the Apex Court noted that the
Certificate under Section 65 of IEA, can be produced at any stage if the trial
is not over. Here the necessity of filing the Certificate under Section 65B of
IEA has arisen because of the contradictory stand taken by the Respondent in
his Statement under Section 313 Cr.P.C. and in his evidence as DW-1. It is
asserted that it is not a new document, which is sought to be placed on record
to fill-up the lacunae in the case; rather it is only a supporting a document
(Tracking Report) which is already on record.
15. Section 311 Cr.P.C. Section (now Section 348 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, hereinafter referred to as ‘B.N.S.S.’)
confers vide discretion on the Trial Court to summon or recall any witness or
evidence at any stage, for just decision of the case. Procedural laws are
handmaidens to justice and cannot be allowed to defeat substantive laws.
There is no deliberate negligence on the part of the Petitioner. The omission
was inadvertent, which is sought to be rectified in view of the Respondent’s
contradictory stand.
16. Hence, the prayer is made that the impugned Order be set-aside and
the Petitioner be granted one opportunity to place on record the Certificate
under Section 65B IEA along with the additional evidence Affidavit and to
recall CW-1, the Authorised Representative of the Complainant Company, to
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
exhibit this Certificate.
17. The Application is contested by the Respondent, who has asserted that
this is the Third Application under Section 311 Cr.P.C. that has been filed by
the Petitioner/Complainant. The Second Application under Section 311
Cr.P.C. had been filed to examine the Postal Authorities, which had been
allowed by this Court vide Order dated 13.05.2025. The witness from Postal
Department was duly called, who stated that the relevant record has been
weeded out. Even at that stage, the Petitioner neither sought the permission to
place on record the Certificate under Section 65B of the IEA or for recall of
CW-1, to prove the requisite Certificate.
18. The final arguments were addressed by both the parties wherein the
Respondent had argued about the Notice not proved to be served through the
Tracking Report as it was not supported by the Certificate under Section 65B
IEA. The matter after being heard, was listed for 05.06.2025 for
clarification/Judgment. It is at this stage that the present Application under
Section 311 Cr.P.C. was filed by the Petitioner. It is evident that it was only
intended to fill-up the lacunae in the evidence of the Complainant in the light
of final arguments addressed by the Respondent. Moreover, in the original
list of witnesses as well, there were these two witnesses, which were cited by
the Complainant but he in his own wisdom had dropped and not choosen to
be examined.
19. The stand of the Respondent was evident all throughout the trial. Even
if there was a contradiction in the Statement under Section 313 Cr.P.C. and in
the testimony as DW-1, it was well within the knowledge of the Complainant
and there was nothing that prevented the Complainant to have moved the
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
Application at the earliest. The very fact that this Application has been
moved after conclusion of final arguments, the Application has been filed
only to fill-up the lacunae in the case of the Complainant. It is, therefore,
contended that there is no infirmity in the Order of the learned JMFC and the
present Petition is liable to be dismissed.
Submissions heard and record perused.
20. It is a well settled proposition of law that the procedures are intended
to assist and aid in delivery of justice. This principle has even more relevance
in criminal trials where the decisions can have ever lasting impact on the life
and liberty of an Accused. It is also well settled that Section 311 Cr.P.C. is
intended to bring on record the complete evidence of the parties to be able to
arrive at a just and fair decision. It is also not in dispute that this Application
can be filed till the pronouncement of Judgment and till then, the trial cannot
be said to have been concluded.
21. The Apex Court in the case of Sukhpal Singh Khaira vs. State of
Punjab, (2013) 1SCC 289 has observed in the context of Section 319 Cr.P.C.
that the trial is concluded only on passing a Judgment of conviction and
sentence and till then, the powers under Section 319 Cr.P.C. can be
exercised.
22. Likewise, in the case of State of Karnataka vs. T. Nasseer alias Nasir
& Ors., 2023 SCC OnLine SC 1447, similar facts arose wherein electronic
evidence had been placed on record by the Prosecution but it was not
supported with the Certificate under Section 65B IEA. The Application under
Section 311 Cr.P.C. was filed by the Prosecution asserting that though the
primary electronic documents were already on record, but by way of
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
abundant caution, sought to place the Certificate under Section 65B of the
IEA, on record. These electronic documents were sent to CFSL for
examination and the Report was thereafter, placed on record. The Report was
sought to be proved by recording of the Statement of the Government
Examinator Computer Forensic Division, CFSL, who appeared as a
Prosecution witness. At this stage, an objection was taken by the Accused
that the Report cannot be taken in evidence in the absence of Certificate
under Section 65B of IEA. Immediately thereafter, the said Certificate was
sought to be brought on record under Section 311 Cr.P.C. and also to recall
the expert witness for proving the Certificate in evidence. The Apex Court
made a reference to Union of India vs. Ravindra V. Desai, (2018) 16 SCC
273 wherein it was emphasised that non-production of a Certificate under
Section 65B of IEA on earlier occasion, is a curable defect. The reference
was also made to Arjun Panditrao Khotkar (supra) wherein it was observed
that so long as the hearing in a trial is not over, the requisite Certificate can
be directed to be produced at any stage so that the information contained in
electronic record Form can then be admitted and relied upon in evidence.
23. Insofar as the proposition of law is concerned, it is well-settled that the
Certificate under Section 65B of IEA is only a procedural requirement and
that the same can be allowed to be taken till the trial is not over.
24. It may however, be noted that the provisions of Cr.P.C. are intended
for benefit of both the parties and cannot be interpreted differentially for the
Complainant or the Accused.
25. The present controversy of filing of the Certificate under Section 65B
of IEA, has arisen in the context of a Complaint under Section 138 of the N.I.
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
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Act, which though is essentially a dispute of civil nature but in order to
enhance the efficacy of the negotiable instruments, Section 138 has been
added to add criminality to dishonour of cheques on account of insufficiency
of funds. It cannot be overlooked that these are Complaint cases, which are
essentially between the Complainant and the Accused. In this backdrop, the
facts of this case may be considered.
26. The Complainant/Petitioner in his Complaint under Section 138 of N.I.
Act, had relied upon the Tracking Report to support the service of Legal
Notice. Pertinently, there were two other witnesses on whom reliance had
been placed by the Complainant, but he in his wisdom did not consider it
necessary or expedient to examine them and the two witnesses were dropped.
27. According to the Petitioner, there was no necessity felt as the
Respondent had admitted that one of the addresses mentioned in the legal
Notice of Demand, was correct. Moreover, in the Statement under Section
313 Cr.PC as well, the Respondent admitted that one address was correct
while the second address was incomplete. In view of these admissions, the
Complainant did not think it was necessary to prove the service of legal
Notice through Tracking Report duly supported with these Certificates under
Section 65B IEA.
28. The necessity for this evidence arose when the Respondent as DW-1,
denied having the receipt the Notice. The Complainant promptly moved an
Application under Section 311 seeking the witness from Postal Department,
to prove the Tracking Report. Pertinently, this Application got allowed by
this Court vide Order dated 03.05.2025. At that stage also, the Petitioner was
well aware of the evidence of the Respondent and their stand in regard to the
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
service of legal Notice. However, it confined its Application only to
examination of witness from Postal Department. The Petitioner even at that
stage was well aware and conscious that no Certificate under Section 65B of
IEA had been filed along with the Tracking Report.
29. Significantly, the witness from Postal Department appeared and stated
that the record was not available despite which no further Application was
made.
30. The final arguments were addressed by both the parties and the
Respondent vehemently challenged the service of legal Notice by taking an
objection that the Tracking Report has not been proved and it is not
supported by Certificate under Section 65B of IEA. It is thereafter, that the
Application under Section 311 Cr.P.C. has been filed.
31. From the aforesaid, it is evident that this Application under Section
311 has been prompted only after the final arguments were addressed and the
legal lacunae in the case of the Complainant, was pointed out. It is not as if
the Complainant was not aware since the commencement of his Complaint
that the Tracking Report was required to be supported by a Certificate under
Section 65B of IEA. Pertinently, the Tracking Report has also not been
proved and exhibited but is only a Marked document.
32. It is evident that this Application under Section 311 Cr.P.C. filed after
the conclusion of final arguments by the Respondent, is only an endeavour to
fill-up the lacunae which have been pointed out during the arguments
addressed by the Respondent.
33. Though, it is well-settled that the procedures cannot be read so as to
deny substantive justice between the parties or to bring on record the relevant
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Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59
evidence, but at the same time, procedures cannot be invoked to work to the
disadvantage of one party. In this context, it is pertinent to observe that the
Complainant all throughout was conscious of the admissions made by the
Respondent in regard to the service of legal Notice and had thought in its
wisdom to be sufficient to prove the service of legal Notice. Significantly, the
Tracking Report in respect of which the Certificate is sought to be placed,
has also not been exhibited. Having so exercised his discretion to rely upon
the claimed admissions of the respondent, the Complainant cannot time and
again file an Application under Section 311 Cr.P.C. only to fill in the lacunae
in their evidence.
34. While generally the Courts are generous in allowing the Application
under Section 311 Cr.P.C., but it has to be considered in the context of facts
and circumstances of each case and there can be no general thumb rule that
the Application has to be allowed in every circumstance merely because a
final Judgment of conviction/acquittal, has not been pronounced.
35. In the present case, the facts as detailed above clearly reflect that the
Third Application under Section 311 Cr.P.C. has been prompted after the
final arguments were addressed by the Respondent, only in an endeavour to
fill the lacunae in the evidence of the Complainant.
36. These Criminal Petitions have no merit and are hereby dismissed and
disposed of accordingly.
37. Pending Applications, if any, also stand disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
AUGUST 4, 2025/RS
CRL.M.C. 5131/2025 & connected Page 12 of 12
Signature Not Verified
Signed By:RITA
SHARMA
Signing Date:06.08.2025
18:35:59