IMPORTANT POINT
A change of counsel does not justify recalling a witness for further cross-examination; sufficient grounds must be shown to avoid delaying proceedings.

ORDER :

M. Nagaprasanna, J.

Petitioners/accused 1 and 2 are before this Court calling in question an order dated 16-02-2024 passed by the IV Additional Civil Judge & JMFC, Anekal in C.C.No.1903 of 2017 registered for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).

2. Heard Sri K.N. Karunashankar, learned counsel appearing for petitioners and Sri Sridhar Prabhu, learned counsel appearing for the respondents.

3. The facts, in brief, germane are as follows:-

1st respondent is the Company and the 2nd respondent is its General Power of Attorney holder and for the sake of convenience both will be referred to as either respondent or complainant in this order. The respondent is the complainant. A complaint comes to be registered invoking Section 200 of the Cr.P.C., in P.C.R.No.319 of 2017 for offence punishable under Section 138 of the Act. The back drop of registering the complaint is that, the complainant is a Toll Road Maintenance and Toll Collection Private Company. It entrusted the work to the petitioners on 28-08-2016 for FOB construction activities in Hosur – Bangalore Highway road. It is the allegation that the petitioners failed to commence the work as agreed upon and the reason projected by the petitioners was demonetization. The petitioners appear to have sought financial assistance of Rs.25/- lakhs as advance amount for the work to be completed and had executed a guarantee document in favour of the complainant. Incurring financial losses, the work did not get completed.

4. The petitioners are said to have issued a cheque for an amount of Rs.25/- lakhs on 18-05-2017 towards what they have borrowed for completion of work. The cheque was presented by the complainant for its realization. It is returned with an endorsement ”funds insufficient”. This forms the instrument before the concerned Court. The issue in the lis does not concern merit of the defence of the petitioners or the allegations of the complainant. The petitioners filed an application under Section 311 of the Cr.P.C., on 04-01-2024 to recall PW-1 for further cross-examination. This comes to be rejected by the impugned order. The rejection of the application has driven these petitioners to this Court in the subject petition.

5. The learned counsel appearing for the petitioners submits that PW-1 had been cross-examined on two occasions in the year 2019 when the earlier counsel was on record. He suffered ill-health and died on 14-04-2023. The present learned counsel for the petitioners, who has now come on record, has noticed that there is certain lacuna in the cross-examination. Therefore, the petitioners have filed the application under Section 311 of the Cr.P.C., to recall PW-1 for further cross-examination. This ought not to have been rejected is the submission of the learned counsel for the petitioners. He would seek to place reliance upon the judgment of the Apex Court in the case of VARSHA GARG v. STATE OF MADHYA PRADESH – 2022 SCC OnLine SC 986.

6. Per contra, the learned counsel appearing for the respondent Sri Sridhar Prabhu would vehemently refute the submissions. He would contend not once but twice PW-1 has been cross-examined, may be by the earlier counsel. Five years after cross-examination, the subject application comes to be filed, on the change of counsel. Change of counsel cannot be a ground for allowing the application under Section 311 of the Cr.P.C. The alleged offence is the one punishable under Section 138 of the Act. For the last 7 years, the proceedings are pending only on the ground of seeking unnecessary adjournments by filing applications. He would submit that application under Section 311 of the Cr.P.C. cannot be used for the purpose of making the proceedings an abuse of the process of law.

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

8. The afore-narrated facts are not in dispute. The transaction betwee