The power of the court under Section 311 of the Code of Criminal Procedure to recall witnesses must be exercised judiciously and not arbitrarily, and the purpose for recalling a witness must be necessary for the just decision of the case.

K. RAMAKRISHNAN, J.

1. This application is filed by the petitioner who is the accused in CC No.1760/2010 on the file of the Judicial First Class Magistrate's Court-V, Ernakulam challenging the order passed by the Magistrate in CMP No.427/2014 under Section 482 of the Code of Criminal Procedure.

2. It is alleged in the petition that the petitioners were arrayed as accused in CC No.1760/2010 on the file of the Judicial First Class Magistrate's Court-V, Ernakulam alleging commission of offence under Section 138 of the Negotiable Instruments Act. It is alleged in the complaint that the complainant and first accused are partnership firms and second accused is the Managing Partner of the 1st accused firm and the complainant and first accused firm were involved in business transactions in connection with Tea trade. In view of the business relationship, second accused approached the complainant for a loan of Rs. 5,00,000/- and the complainant arranged a loan accepting the promise of the accused to repay the amount within a short time. Contrary to the promise, the amount was not paid. When the complainant insisted for return of amount, the accused issued a cheque dated 5.12.2006 drawn on Vijaya Bank, Wellington Island for Rs.5,00,000/-. When the cheque was presented, it was dishonoured for the reason insufficient fund and in spite of the notice sent, he did not pay the amount nor had he sent any reply. So the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act and the respondent filed a complaint.

3. On receipt of the summons, the accused entered appearance. The case was posted for evidence on many occasions and when the case was posted on 5.10.2012, on that day the junior counsel attached to the office of the accused requested for an adjournment for cross examination of the complainant. Since the case was adjourned for evidence on many occasions earlier, the Magistrate insisted the junior counsel to conduct the cross examination. Though the junior counsel conducted cross examination in accordance to the court's direction, certain crucial questions were omitted to be put to the complainant during cross examination. The Magistrate closed the evidence of the complainant and posted the case for 313 examination of the accused. Thereafter the accused sought to engage a new counsel and the counsel on finding that certain questions with regard to the accounts maintained by the complainant which were omitted to be asked during cross examination were crucial as far as the defence of the accused was concerned and submitted an application under Section 311 of Code of Criminal Procedure to recall PW1 for further examination of the complainant. The learned Magistrate dismissed the application by impugned Annexure-A1 order. This order is being challenged by the petitioner by filing this petition.

4. Heard Shri. V.G. Arun learned counsel appearing for the petitioner and Shri. C.S. Ramnathan counsel appearing for the first respondent and Smt. Seena Ramakrishnan learned Public Prosecutor appearing for the state.

5. The counsel for the petitioner submitted that certain crucial questions relating to the transaction were not put to the complainant when he was cross examined by the junior counsel who appeared earlier. The junior counsel had not prepared the case and junior counsel was compelled to cross examine the witness due to the insistence of the learned Magistrate denying adjournment on the ground of personal inconvenience of the Senior lawyer appearing for the petitioners. Further Section 311 of the Code of Criminal Procedure has to be construed liberally so as to provide fair trial for the purpose of adjudicating the case in an effective manner and court should not narrow down the scope and deny the opportunity of fair trial to the accused. By dismissing the application by the court below, the opportunity to have fair trial to the accused has been denied. He had relied on the decisions reported in Natas