The power under Section 311 Cr.P.C. should be invoked for strong and valid reasons and exercised with care, caution, and circumspection.

1. Rule. Rule returnable forthwith. By consent, heard finally at the stage of admission.

2. Being aggrieved by order dated 29th June, 2017 in S.C.C. No. 0868 of 2011 by Judicial Magistrate (F.C.), Sangamner, District Ahmednagar, rejecting the application filed under Section 311 of the Code of Criminal Procedure, 1973 [For short, "Cr.P.C.], petitioner accused has preferred this writ petition.

3. Heard learned counsel for the petitioner accused and the respondent complainant.

4. Perused the impugned judgment and order passed by the trial court.

5. In nutshell, it is the contention of the learned counsel for the petitioner, that the trial court has erred in rejecting the application seeking recall of witness. He submits that on the face of the cross examination conducted, it can be inferred that the counsel representing the petitioner has not properly conducted the cross examination. In view of another advocate engaged in the case and it being brought to the notice of the petitioner, that there was no proper cross examination, application under Section 311 of the Cr.P.C. came to be filed. He submits that affording an opportunity to the petitioner to conduct further cross examination by recalling the witness would help the petitioner to prove her innocence and it would cause no prejudice to respondent complainant. In support of the submissions advanced, learned counsel has referred and relied upon decisions of the Apex Court in the case of Himanshu Singh Sabharwal Vs. State of Madhya Pradesh & others ((2008) 3 SCC 602) and Godrej Pacific Tech. Limited Vs. Computer Joint India Limited [(2008) 11 SCC 108).

6. In counter to the submissions advanced, learned counsel representing the respondent supported the judgment and order passed by the trial court. By referring the reasons recorded by the trial court, the learned counsel submitted that the application filed by the petitioner seeking recall of witness has been made with an ulterior motive to protract the hearing of the case. He submits that change of an advocate cannot be a ground to entertain such request to recall the witness. He submits that the ground on which the petitioner sought recall of the witness is not sufficient to entertain the request made under Section 311 of the Cr.P.C. Learned counsel for the respondent has further submitted that no case is made out to interfere with the order in exercise of writ jurisdiction. In support of the submissions advanced, the learned counsel referred and relied upon decision of the Apex Court in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and another ((2016) 2 SCC 402) and decision of this court in the case of Ahmedkhan s/o. Alamkhan Pathan Vs. State of Maharashtra & others (2016 ALL MR (CRI) 5061).

7. In order to appreciate submissions advanced, I have perused copy of the application to recall the witness filed by petitioner as well as the order passed by the learned Magistrate. The fact is not in dispute that on account of dishonour of cheque of Rs. 80,000/- issued by the accused in favour of the complainant, the complaint under Section 138 of the Negotiable Instruments Act has been filed in the year 2011. Plea of accused was recorded on 17-09-2014. Affidavit by way of examination in chief on behalf of the complainant was filed on 11-12-2015. Cross examination of the witness for complainant was concluded on 05-12-2016. Statement of accused under Section 313 of the Cr.P.C. was recorded on 11-01-2017. Thereafter, the case was kept for recording of evidence. Later on the petitioner accused changed her advocate. After a period of about 5 - 6 months after recording of statement of complainant, application under Section 311 of the Cr.P.C. came to be filed by the petitioner seeking recall of witness with a sole ground that the advocate engaged in the matter has not properly cross examined the witness. On due consideration of submissions, learned Judge of the trial court has passed a well reasoned order. After taking note of con