An application filed by the petitioner under S.311 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), to recall PW1 for the purpose of production and marking of a demand promissory note and receipt having been dismissed by the learned Magistrate, this petition was filed.

2. The brief facts and circumstances of the case giving rise to this petition are as under:

A private complaint having been filed under S.200 of the Code, against the respondent, alleging commission of an offence under S.138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), cognizance was taken and process was issued. Trial having taken place, complainant filed an application under S.311 of the Code, to recall PW1 and, to produce and mark a DP note and receipt. The application having been opposed, was dismissed on the ground, (i) that the reason for non-production of the document, which was in the custody of the complainant was not explained and (ii) that the document having not been duly stamped is not admissible in evidence.

3. Sri Arun Shyam, learned advocate, contended that the Magistrate has committed error in passing the impugned order. He submitted that by allowing the application, no prejudice would be caused to the respondent. Reliance was placed on the decision in GODREJ PACIFIC TECH. LTD. Vs. COMPUTER JOINT INDIA LTD., (2009) 2 SCC (Cri) 455.

4. On the contrary, Sri P.M. Narayana Swamy, learned advocate for the respondent made submissions in support of the impugned order and sought dismissal of this petition.

5. Considered the rival contentions and perused the record.

6. S.311 of the Code confers wide discretionary power upon the Court, which should be exercised judiciously, in the matter of summoning any person as a witness or examine the person present. To exercise the power, the Court must satisfy itself, that it was in fact, essential to examine such a witness or to recall him for further examination, in order to arrive at a just decision of the case.

7. In MOHANLAL SHAMJI SONI Vs. UNION OF INDIA, AIR 1991 SC 1346, Apex Court having examined the scope of Section 311 Cr.P.C., has held that, it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the Court to prove a fact, or a point in issue. However, it has been made clear the Court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence, should ensure that justice is done. It has been held that the Court has a duty to determine the truth, and to render a just decision. It has been further held that the same is also the object of Section 311 Cr.P.C., wherein the Court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or reexamine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because, if the judgment happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. It has been further held as under:

“27…..the criminal Court has ample power to summon any person as a witness or recall and reexamine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” (emphasis added)

8. In RAJESWAR PRASAD MISRA Vs. STATE OF WEST BENGAL, AIR 1965 SC 1887, Apex Court while dealing with the power and jurisdiction vested in the Court, with respect to taking additional evidence has observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the Court must exami