IMPORTANT POINT
The discretionary power under Section 311 of the Cr.P.C. must be exercised judiciously to prevent abuse of the legal process, especially in long-pending cases.

ORDER:

Petitioner is before this Court calling in question order dated 01-04-2024 passed in C.C.No.642 of 2009 by the I Additional civil Judge (Jr.Dn.) and JMFC., Kolar.

2. Heard Sri M R Nanjunda Gowda, learned counsel appearing for petitioner and Smt Sadhana S Desai, learned counsel appearing for respondent.

3. A complaint comes to be registered against the petitioner by the respondent-State Bank of India invoking Section 200 of the Cr.P.C. before the learned Magistrate. The learned Magistrate takes cognizance of the offences under Sections 405, 406, 409 and 420 of the IPC and issues summons to the petitioner after registering C.C.No.642 of 2009. The issue in the lis does not concern the merit of the matter. In the proceedings, the petitioner files an application under Section 311 of the Cr.P.C. seeking recall of P.W.1, the Branch Manager for further cross-examination. Turning down of this application has driven the petitioner to this Court in the subject petition.

4. Learned counsel for petitioner Sri M. R. Nanjunda Gowda would vehemently contend that the further cross-examination of P.W.1 is imperative to prove his innocence, as it is the last straw of opportunity available to the petitioner and he had been examined in the year 2021 and all other witnesses who came along with P.W.1 have all been examined, it is only the further cross-examination of P.W.1 would prove the innocence with to certain of the documents.

5. Per-contra, the learned counsel Smt. Sadhana S.Desai, appearing for the respondent/State Bank of India would vehemently refute the submission, taking this Court through the application so filed by the petitioner and the objections. It is her contention that there is no indication in the application as to what are the documents that the petitioner wants to confront P.W.1 with, on grant of an opportunity to further cross- examine. She would further submit that the case is 15 year old and the petitioner is now seeking to file an application for recall of P.W.1 only to drag the proceedings. She would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass as to whether the application under Section 311 of the Cr.P.C. was to be allowed by permitting further cross-examination of P.W.1 or otherwise. In the normal circumstances, an application filed under Section 311 of the Cr.P.C. would be permitted, as it is necessary for discovery of truth, provided this should not become an abuse of the process of the law. The Apex Court has time and again carved an exception in considering the application under Section 311 of the Cr.P.C. The application of the petitioner seeking such recall reads as follows:

“…. …. ….

1. The above case is posted for arguments on defence side. While preparing for arguments it is noticed that some of the important documents relating to loan transactions are not placed by the complainant in the case file. Now, the accused intends to confront those material documents to PW1 Sri Sridara Rao (who is the complainant) because those documents are very essential to substantiate the stand taken by the accused in the case, which is filed for an offence punishable under section 420 IPC and other offences.

2. The complainant PW1 Sri Sridara Rao has issued copies of those documents to the accused, hence, it is to be confronted to the PW1 in further cross examination.

3. That the complainant has filed this case against the accused alleging offences under section 409, 405, 406, and 420 IPC and adduced evidence in the case. While cross examining the PW1, the accused was not aware about the existence of those material documents to put them or contradict them to the witness. Later, he came to know the existence of those documents, hence, this application to recall PW1 for further cross examination in the case.

4. Under these circumsta