S. 311, Cr.P.C. empowers the court to recall a witness at any stage of the trial if it considers it necessary for a just decision of the case.

This revision, at the instance of the accused in C.C. 348/97 before the Judicial 1st Class Magistrate's Court. Kanjirappally, is challenging the order in C.M.P. 6156/2000 allowing the complainant to be examined further under S. 311, Cr.P.C.

2. The respondent/complainant filed the complaint alleging the commission of an offence under S. 138 of the Negotiable Instruments Act. According to the allegations in the complaint, the revision petitioner had issued a cheque for Rs. 30,000/- and the same was dishonoured when presented for encashment and though the accused accepted the notice demanding the repayment of the amount, he did not reply or pay off the amount and hence the complaint was filed. But when the complainant was examined as P.W. 1, he deposed that the amount given to the accused was Rs. 16,000/-. The accused raised a contention that the transaction between the parties was for an amount of Rs. 15,000/- and that amount was repaid and that he had not issued a cheque for Rs. 30,000/-. Later the complainant filed C.M.P. 6156/2000 under S. 311, Cr.P.C. for recalling the complainant for giving further evidence for correcting the above statement that the accused borrowed Rs. 16,000/- was an inadvertent mistake committed during the examination and hence the complainant wanted to correct the above mistake. The Court below allowed the petition and ordered to recall the complainant for further examination. The above order is under challenge in this revision.

3. The learned counsel for the petitioner argued that the deposition given by the witnesses relating to the amount borrowed by the accused cannot be allowed to be corrected by invoking S. 311, Cr.P.C. The learned counsel for the respondent/complainant submitted that it was not in the form of making a correction of the statement given by the complainant, but it was in the nature of giving an opportunity to explain the circumstances and to clarify the accidental mistake. It was further submitted that a notice was issued on the petitioner regarding the dishonouring of the cheque and demanding the payment of Rs. 30,000/- the cheque amount and that the above notice was accepted by the petitioner and even then no reply had been sent disputing the amount covered by the cheque. But when the complainant was examined as P.W. 1, a suggestion was made to the effect that the transaction between the parties was for an amount of Rs. 15,000/- and the above amount had been repaid also, though no documents were produced to substantiate the above contention.

4. The main argument advanced by the learned counsel for the petitioner was that an admission made in the deposition by the complainant cannot be allowed to be corrected in re-examining the complainant after closure of the evidence and S. 311, Cr.P.C. cannot be invoked for filling up the lacuna in the prosecution case. Reliance was placed on a decision of the Supreme Court in Hussain Omar v. Dalipsinghji, AIR 1970 SC 45 : (1970 Cri LJ 9). That was a case where the defence filed a petition to recall one witness (P.W. 50). According to the defence, the above witness wanted to say that he had given false evidence earlier. There was no affidavit from the above witnesses or other material to show that the evidence let in by the above witnesses was false. In the above circumstances the Court disallowed the petition filed under S. 540, Cr.P.C. (corresponding to the present S. 311) seeking permission to examine the witnesses. Regarding the inherent powers of the Court the Supreme Court held :

"The Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial."

In State of Kerala v. Ayyappan Gopalan, 1965 KLT 894 this Court had considered the scope of S. 540 of the old Code of Criminal Procedure and held :

S. 540 gives unrestricted powers of summoning recalling any witness of his evidence appears essential to the just decision of the ca