The court emphasized that the power under Section 311 of the Cr.P.C. must be exercised judiciously to prevent failure of justice, and not merely to prolong proceedings.

JUDGMENT :

URMILA JOSHI-PHALKE, J.

1. Heard.

2. Admit.

3. Heard finally by consent of learned counsel appearing for the parties.

4. By this application, the applicant is seeking quashing and setting aside the order passed below Exhibit No. 146 by the Judicial Magistrate First Class Court No. 2, Akola, by which the application filed under Section 311 of the Criminal Procedure Code is rejected.

5. It is contended by the applicant that a complaint has been filed under Section 138 of the Negotiable Instruments Act, 1881, in the Court of Chief Judicial Magistrate Akola, which was registered as S.C.C. No.1205/2013. It is alleged that the complainant has paid the amount of Rs. 10 lakhs for business purpose for the accused, and the amount of Rs. 7 lakhs was decided to be repaid, and the M.O.U. was executed on 17/01/2007. There was a business partnership in between complainant and the accused. However, ultimately the amount was demanded back by the complainant, and therefore, the applicant has issued two cheques on 20/07/2012 drawn on Washim Urban Cooperative Bank Ltd., Washim, of Rs. 5 lakhs dated 20/11/2012 and Rs. 5 lakhs dated 31/01/2013. The cheques were presented and returned back with an endorsement “funds insufficient.”. Accordingly, the notice was issued on 27/02/2013, which was duly served and received by the applicant on 01/03/2013. After receipt of notice, the amount was not paid, and therefore, the complaint was filed on 04/04/2013.

6. After filing of the complaint, the complainant has examined himself on affidavit. On 26/03/2017, the applicant engaged the counsel, and after recording the evidence and the statement of the present applicant under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the Judicial Magistrate First Class was pleased to hold him guilty and sentenced him to suffer rigorous imprisonment for a period of one month and to pay a fine of Rs. 10 lakhs, in default to undergo simple imprisonment for three months.

7. Being aggrieved and dissatisfied with the judgment and order of sentence, the applicant has filed an appeal bearing No. 25/2019. The contention of the applicant before the appellate court was that he was not given any opportunity of adducing the witness or evidence, and also the prayer was made for remanding the matter. Accordingly, the appellate Court, i.e., the District and Additional Sessions Judge, considered the prayer and remanded back the matter by setting aside the conviction of the present applicant. It was directed that the applicant be permitted to adduce his evidence in support of his defence by giving him the opportunity to examine the defence witnesses.

8. After remanding back the matter to the trial Court, the present applicant has filed an application under Section 311 of the Cr.P.C. for recalling the complaint for further cross- examination. On the ground that, after filing of evidence on affidavit, the complainant was cross-examined by the accused. The bulk of the document is filed by the complainant on record. The cross-examination was not conducted, and many important facts and documents were not presented, and many important questions remained to be asked during the cross-examination, and therefore, he was permitted to recall the witness. In view of that, the application be allowed.

9. The said application is strongly opposed by the complainant on the ground that the matter was remanded back only on the prayer that he be permitted to adduce the evidence in support of his defence, and as far as recalling of the witness is concerned, never raised before the appellate Court. It is further contended by the complainant that this application is filed only to prolong the matter.

10. Considering the submissions of both sides and the settled law, the application is rejected by the Judicial Magistrate First Class, Court No. 2, Akola, and therefore, this application is filed.

11. Heard learned counsel for the applicant and learned counsel for the respondents. Perused the impugned judgm