The court affirmed that a witness may be recalled if essential for just decision, balancing this against the need for diligent participation in proceedings.

JUDGMENT

Poonam A. Bamba, J. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) for setting aside of order dated 09.05.2022 (`impugned order' in short) passed by learned MM (NI Act), Digital Court-02, South-East, New Delhi in CC No. 4519/2021, whereby the petitioner's application under Section 311 Cr.P.C for recalling of the complainant/CW1 further cross examination, was dismissed.

2.0. It is submitted that the matter was listed for 04.05.2022 for complainant's evidence. Copy of the complainant's evidence by way of email was received by the petitioner on 02.05.2022 and hard copy of the same was received by the petitioner's counsel on 04.05.2022 at 4 pm. Therefore, the counsel could not get sufficient time to receive documents from the petitioner and put the same to the complainant, in cross examination.

2.1. It is submitted that a request for time for preparing for cross examination was made, but the same was declined by the Ld. M.M.; and the petitioner's counsel was compelled to cross examine the complainant on 04.05.2022. Subsequently, when the counsel for the petitioner received documents from the petitioner who is living in Hyderabad, he realized that they are material documents and needed to be put to the complainant in cross examination. Hence, the application under Section 311 Cr.P.C was immediately filed before the Ld. M.M on 09.05.2022 for recalling of the complainant/CW1. But the same was dismissed. Hence, this petition.

3.0. Ld. counsel for the respondent opposes this petition submitting that the petitioner had due opportunity to cross-examine the complainant/respondent, which he availed ; he had cross-examined the respondent/complainant at length on 04.05.2022. No adjournment was sought.

3.1. Ld. Counsel for the respondent also submitted that that as petitioner did not disclose the documents/relevant facts, which he intended to put to the respondent in cross-examination, his application under Section 311 Cr.P.C was rightly dismissed by the Ld. Magistrate.

3.2. Ld. counsel for the respondent further submitted that `No Dues Certificate' with respect to dues referred to by the petitioner in the present petition, is forged and fabricated and the respondent has already filed a complaint with the police in that regard. Even otherwise, the documents sought to be put to CW1/respondent in cross-examination, can be brought by the petitioner in his defence evidence.

3.3. Ld. counsel for the respondent also argued that after recording of statement of the petitioner/accused on 13.05.2022, the matter was fixed for defence evidence on 18.05.2022. But the petitioner/accused did not disclose before the Ld. Magistrate about filing of the present revision petition. Neither did he seek adjournment on this ground. Rather, an exemption was sought by the petitioner on the ground of illness, which shows his mala fide.

4.0. In rebuttal, Ld. counsel for the petitioner submitted that the petitioner/accused has been diligently appearing in the case; and never sought any adjournment. Only because the petitioner's counsel had a very short time to prepare the matter for cross-examination of the complainant/CW-1/respondent and as the relevant documents could not be sent by the petitioner, who is based in Hyderabad, the petitioner deserves an opportunity to cross-examine the respondent in that regard. Ld. counsel for the petitioner also submitted that details of the documents were not given in the application u/s 311 Cr.P.C as the petitioner did not want to foreclose his defence.

5.0. I have duly considered the submissions made by both the sides.

6.0. It would be pertinent to refer to Section 311 Cr.P.C at the outset, which reads as under:

"311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, o