The main legal point established is the judicious exercise of discretionary power under Section 311 of the Cr.P.C. to ensure the just decision of the case, considering the essentiality of evidence and the aim of discovering the truth.

ORDER :

The petitioner in this writ petition calls in question order dated 23-02-2022 passed by the IV Additional Civil Judge & JMFC, Mysuru in C.C.No.2100 of 2015 rejecting the application filed by the petitioner under Section 311 of the Cr.P.C. seeking recall of PW-1 for further cross-examination.

2. Heard Sri.Praveen Kumar. G.S., learned counsel for petitioner.

3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:

The petitioner and the respondent are parties to a transaction which resulted in the respondent registering a complaint under Section 200 of the Cr.P.C. for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code. Since the issue revolves round on a narrow compass, other details about the transaction or the proceedings are not necessary to be noticed.

4. The examination-in-chief of the complainant happened by way of an affidavit on 12-12-2018. The matter was adjourned for cross-examination of the complainant from 12-12-2018 to 26.08.2019. The claim of the petitioner is that due to short of time, the advocate for the accused was not able to collect complete information with regard to the case. Lack of securing documents led to a cross-examination made by the counsel for the petitioner unfinished. Many questions that had to be put to the witness were omitted by the counsel is the primary ground that is urged. On the score that several questions were left out when the complainant was cross-examined on 26-08-2019, an application was filed by the petitioner seeking recall of PW-1 for further cross-examination on 26-11-2021 close to 2 years and 3 months after such cross-examination. The application submitted reads as follows:

“APPLICATION UNDER SECTION 311 OF CR.P.C.

It is respectfully submitted on behalf of the accused as follows:

On the strength of Ex.P.01 complainant case is filed alleging false under section 138 of N.I. Act.

This Hon’ble curt was kind enough to provide sufficient opportunity to cross-examination of PW-1. On 26/08/2019, PW-1 was even cross-examined by his counsel who passed away due to pandemic. Now the above matter stands posted for the arguments.

It is noticed that some of the vital aspects of the greater importance to defend the case of the prosecution could not have been brought on record while the PW-1 was cross-examined. The situation was also not favorable and whole world was facing complete disturbance due to covid19 as such there was not much concentration was made on area of cross-examine of PW-1.

It is respectfully submitted that, in order to protect rights of accused an effective cross-examination is required to demonstrate false claim, as such re-calling of the PW-1 for further cross-examination is very much needed.

If the PW-1 is recalled, it will not cause any hardship or injury per contra if this Hon’ble Court decline to allow this application it will cause serious legal injury and accused may not be in a better position to defend the case of the complainant effectively and completely. Absolutely there is no delay tactics from the side of the accused. It is only a sincere attempt which is available to the accused to defend him properly.

Hence, the application is filed requesting this Hon’ble Court to recall the PW-1 for the further cross-examination in order to rebut this statutory presumption with all effectiveness.

If the complainant is not cross-examined with all materials, the valuable rights of defending guaranteed by the constitution would be frustrated.

Wherefore, accused prays that, this Hon’ble court be pleased to recall the PW-1 to Cross examine, in order to meet the ends of justice, in the above case, in the interest of justice.”

The narration in the application is that after the crossexamination on 26-08-2-019 the counsel who cross-examined the complainant died due to COVID-19 and recall is sought that since there was complete disturbance due to COVID-19 not much concentr