V.B. Gupta, J.—By way of present petition filed by the petitioners they have sought quashing of order dated 31.7.2007, passed by Mr. M.K. Gupta, MM in complaint case, under Section 138 of the Negotiable Instruments Act, which is fixed for final arguments.

2. The petitioner moved an application under Section 311 Cr. P.C. for recalling of the complainant for his examination in respect of the audio cassette and it was also prayed that audio cassette be sent to the Scientific Forensic Laboratory. It has been stated in the application that DW-1 filed audio cassette containing conversation between the accused and the complainant wherein it was admitted by the complainant that he has received half the amount of the cheque in question. As the complainant was not confronted with the cassette during his cross-examination, the authenticity of the cassette was challenged and the cassette was claimed to be fabricated one. In these circumstances, it has become necessary that the complainant be recalled for examination only in respect of his voice and conversation and in case he denies the voice, the audio cassette be sent for its Scientific Analysis.

3. Vide impugned order, application under Section 311 Cr.P.C. was dismissed by the learned Magistrate.

4. It has been contended by learned counsel for the petitioner that provisions of Section 311 Cr. P.C. are purely discretionary and the same are to be construed liberally. The trial Court has not afforded the opportunity to the petitioner to put the contents of the audio cassette in which the respondent has admitted the acceptance of money particularly when respondent himself has suppressed this important fact from the Court. So the petitioner wants to recall the complainant only for the purpose of confronting him with his voice.

5. The relevant portion of the impugned order passed by the learned Magistrate reads as under:

“The defence evidence was closed by learned predecessor of this Court on the first time on 14.7.2005. In view of aforesaid closure, the accused moved an application and vide order dated 30.09.2005 only one another opportunity was granted on the application of the accused to lead defence evidence. Accused availed 7 opportunities exclusively and two with the complainant for the same.

The matter was repeatedly put for leading defence evidence vide order dated 6.7.2006 as passed by learned predecessor of this Court which is a reasoned order the D.E. was again closed. The accused moved another application for leading the defence evidence which was also disposed of vide reasoned order dated 5.10.2006. Another application was moved by the accused 3rd time for leading defence evidence under Section 311 Cr.P.C. which was allowed by the learned predecessor of this Court dated 28.3.2007. After examination of number of witnesses the defence evidence was finally closed 4th time on 11.4.2007. As of now this is an application for re-examining the complainant again by the accused. Learned Counsel Sh. Wadhwa states that the conduct of the accused cannot be seen at this stage for deciding instant application in view of estoppel principle. The matter pertains to the year 2003 and is pending for cross-examination and evidence of parties cannot be taken in piece-meal and accused cannot be allowed to improve his case by seeding opportunity after opportunity. Even otherwise the Court has seen case on merit. Audio cassette in question or his transcript could have been produced at the first available opportunity by the accused during cross-examination of the complainant. However the same was not done. The question which learned Counsel for accused wants to prove by way of aforesaid audio cassette is in respect of some part payment being made. These questions has already been answered by the accused in his state rent of accused recorded before the Court on 4.3.2005 in question No.4 and 7. Even otherwise it can be seen that the transcription of audio cassette was filed before the Court o