V.B. Gupta, J.—This petition has been filed under Article 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking quashing of the impugned order dated 21st July, 2007 passed by learned Magistrate, rejecting his application under Section 311 Cr.P.C.

2. The brief facts of the present case are that respondent herein, filed a criminal complaint under Section 138 of the Negotiable Instruments Act (for short as ‘Act’) in which the present petitioner has been facing trial. Statement of the petitioner (as an accused) has been recorded under Section 313 Cr.P.C. in the proceedings before the Magistrate. Thereafter he was afforded opportunity to lead evidence in defence but he did not examine any witness. After hearing, the learned Magistrate had reserved the case for orders for 29th September, 2006. In the meanwhile, on 22nd September, 2006, the petitioner moved an application under Section 315 Cr.P.C. and the same was dismissed by the Magistrate. Thereafter, a revision petition was filed before the Court of Session, which was also dismissed by Session Court. The present application under Section 311 Cr.P.C. has been filed for recalling the complainant for cross-examination. Since, respondent had already received Rs.l,60,000 vide receipt dated 10th February, 2001 from the petitioner and now nothing is due from petitioner.

3. It has been contended by learned counsel for the petitioner that petitioner wants to further cross-examine the respondent who had executed one receipt for Rs.1,60,000 in favour of the petitioner and petitioner has returned the entire cheques amount by way of giving cash amount to the respondent and nothing remains to be paid by the petitioner. The respondent did not return the original cheques and became dishonest and filed a complaint against the petitioner. The petitioner is not liable to pay any amount as claimed in the complaint and the application under Section 311 Cr.P.C. to further cross-examine has been filed for proving him false before the court of law and there will be gross miscarriage of justice if the petitioner is not given opportunity to cross-examine the petitioner and in support of his contentions learned counsel for the petitioner has cited Mohanlal Shamji Soni v. Union of India & Anr.1

4. There is no dispute about the preposition of law laid down in the case Mohanlal Shamji Soni (Supra) that:

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

5. But the question to be seen is as to whether there are grounds for recalling the complainant for further cross-examination, keeping in view the facts and circumstances of the case in hand and conduct of the petitioner before the trial Court. For that purpose, it would be necessary to refer to the order