Gauhati High Court
Page No.# 1/7 vs Amit Goyal And Anr on 27 January, 2026
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010129472025
2026:GAU-AS:1364
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1494/2025
NABAJYOTI KALITA
SON OF SRI GANGADHAR KALITA,
R/O P.D. CHALIHA ROAD,
1ST BY LANE, SILPUKHURI, P.O. AND P.S. CHANDMARI, DIST. KAMRUP
(M), GUWAHATI, ASSAM
VERSUS
AMIT GOYAL AND ANR
S/O SRI JAIPRAKASH AGARWAL (GOYAL) PROPRIETOR OF M/S BALAJI
ISPAT, NAU PUKHURI ROAD, TINSUKIA, R/O GANDHI PARK ROAD, P.O. P.S.
AND DIST. TINSUKIA, ASSAM
2:M/S BALAJI ISPAT
(A PROPRIETORSHIP FIRM REPRESENTED BY ITS PROPRIETOR
SRI AMIT GOYAL (SITUATED AT OPPOSITE MAYUR HOTEL
NAU PUKHRI ROAD
TINSUKIA TOWN
P.O.
P.S. AND DIST. TINSUKIA
ASSA
Advocate for the Petitioner : MR. M K DAS, O ASSUMI
Advocate for the Respondent : MR D KALITA(R-1,2), MS R KOUR(R-1,2)
Page No.# 2/7
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 27-01-2026 Heard Mr. M.K. Das, learned counsel for the petitioner and Mr. D. Kalita, learned counsel for the respondent nos. 1 & 2.
2. This criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita, 2023 is preferred to assail an Order dated 22.11.2024 passed by the Court of learned Sub-Divisional Judicial Magistrate [S], Tinsukia ['the Trial Court', for short] in N.I. Case no. 137/2016. By the Order dated 22.11.2024, the Trial Court has allowed the complainants' side to recall and re-examine one prosecution witness, P.W.2 [Prasant Kr. Singh, Assistant Manager, Punjab National Bank] for producing a certificate as required under Section 65B of the Indian Evidence, Act, 1872.
3. The respondents herein as complainants have instituted a complaint case before the Trial Court alleging commission of an offence under Section 138, Negotiable Instruments [N.I.] Act, 1881, as amended, wherein the petitioner has been arrayed as the accused. The complaint case has been registered and numbered as N.I. Case no. 137/2016. In the complaint, it has been stated that the complainant no. 1, that is, the respondent no. 1 herein is the proprietor of the complainant no. 2 firm, that is, the respondent no. 2 herein [hereinafter referred to as 'the complainant', for ease of reference].
4. In the complaint, it has been asserted that two cheques for amounts of Rs. 4,00,000/- and Rs. 2,00,000/- respectively were issued by the accused in favour Page No.# 3/7 of the complainant from a bank account maintained by the accused in Maligaon Chariali Branch, Guwahati of HDFC Bank Ltd. towards partial discharge of liability. The complainant has alleged that the accused used to purchase TMT Bars on credit from the complainant in the ordinary and usual course and the cheques were given towards payment of a part of the outstanding dues. The complainant has alleged that when the cheques were presented for collection at its bank, that is, Oriental Bank of Commerce, Tinsukia Branch, they were returned unpaid on ground of insufficient fund stop payment instruction. The complainant has asserted that it had followed requisite formalities to institute the complaint.
5. After taking cognizance of the offence, the Trial Court issued process against the petitioner for his appearance as an accused in connection with N.I. Case no. 137/2016. Upon receipt of process, the petitioner entered appearance and denied the accusation when the offence was explained to him by the Trial Court. The complainant side had, at first, submitted evidence on affidavit of the complainant as P.W.1. Upon closure of evidence of P.W.1 after cross- examination, the second prosecution witness, P.W.2 was summoned from the Punjab National Bank, Tinsukia Branch where the cheques were presented for collection, to adduce evidence. P.W.2 was examined and cross-examined on 19.06.2024 and thereafter, he was discharged.
6. Subsequently on 18.07.2024, a petition was filed by the complainant side before the Trial Court for recall and re-examination of P.W.2 as on 19.06.2024 when the P.W.2 produced the Statement of Account, such Statement of Accounts was not accompanied by a Certificate under Section 65B of the Page No.# 4/7 Evidence Act, 1872. The petition was numbered as Petition no. 2959/2024. The Trial Court after hearing the parties on the point raised in Petition no. 2959/2024, by the impugned Order dated 22.11.2024, had allowed the prayer for recall and re-examination of P.W.2 [Prasant Kr. Singh, Assistant Manager, Punjab National Bank] for production of the Certificate under Section 65B of the Evidence Act, 1872.
7. Aggrieved by and dissatisfied with the Order dated 22.11.2024, the petitioner who is the accused in N.I. Case no. 137/2016, has preferred this criminal petition raising a ground that if recall and re-examination of P.W.2 is allowed to produce any Certificate under Section 65B, Evidence Act, the same would amount to filling up the lacuna in the complainant's case. It is the contention of the learned counsel for the petitioner that the power under Section 311, CrPC is only to be exercised for just decision and in the event of failure of a witness to produce the Certificate under Section 65B, Evidence Act at the time of his examination-in-chief, such witness cannot be recalled and re- examined for the purpose of enabling him to produce the Certificate under Section 65B, Evidence Act at a later stage.
8. I have gone through the Order dated 22.11.2024 passed by the Trial Court wherein the Trial Court has assigned the reasons for exercising the power under Section 311, CrPC. While deciding Petition no. 2959/2024, the Trial Court has found that if P.W.2 is allowed to be recalled and re-examined for the purpose of producing the Certificate under Section 65B, Evidence Act in support of the Statement of Accounts he had already exhibited during his testimony, the same would not amount to filling up any lacuna for the complainant's case. The Trial Page No.# 5/7 Court has further referred to a decision of the Hon'ble Supreme Court in State of Karnataka vs. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi and others, 2023 INSC 988.
9. Section 65B[1] of Indian Evidence Act, 1872 had laid down that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in the Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. Section 65B [2] has set forth the conditions for treating the electronic records as documents. Section 65B[4] has prescribed that in any proceedings where it is desired to give a statement in evidence by virtue of the Section, a Certificate doing any of the following things, that is to say,- [a] identifying the electronic record containing the statement and describing the manner in which it was produced; [b] giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; [c] dealing with any of the matters to which the conditions mentioned in sub-section [2] relate and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities [whichever is appropriate] shall be evidence of any matter stated in the Certificate; and for the purposes of sub-section [4], it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person Page No.# 6/7 stating it.
10. In State of Karnataka vs. M.R. Hiremath, [2019] 7 SCC 515, the Hon'ble Supreme Court has held that non-production of the Certificate under Section 65B of the Indian Evidence Act is a curable defect.
11. From Sonu vs. State of Haryana, [2017] 8 SCC 570, it can be observed that in case of an objection regarding any prayer to allow production of the Certificate at a later stage, the crucial aspect which is to be looked into by the Court while exercising its discretion under Section 311, CrPC is that it has to exercise the discretion after seeing that the accused is not prejudiced by want of a fair trial and the Court may in appropriate cases allow the prosecution to produce such certificate at a later point of time.
12. In a subsequent decision, T. Naseer [supra], the Hon'ble Supreme Court has observed as under :-
15. Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution.
This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Page No.# 7/7 Cr.P.C. can be exercised to subserve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.
13. The object underlying Section 311, CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. Under Section 311, CrPC, the Court has power to even recall witnesses for re-examination or further examination, necessary in the interest of justice.
14. In view of such settled propositions that firstly, non-production of the Certificate under Section 65B, Evidence Act is a curable defect; secondly, the power under Section 311, CrPC read with Section 138, Evidence Act wherein the provision for re-examination of a witness has been provided for with a further provision for further cross-examination of such witness by the other party; and thirdly, the accused would have the liberty to rebut the evidence led by the prosecution even after production of a Certificate under Section 65B, Evidence Act with the recall and re-examination of P.W.2, this criminal petition assailing the Order dated 22.11.2024 passed by the Trial Court in N.I. Case no. 137/2016 is found to be bereft of any merit and consequently, the same is dismissed.
JUDGE Comparing Assistant