The court reaffirmed that re-examination under Section 311 Cr.P.C. is discretionary and should only be granted when essential for justice.

ORDER

1. The present criminal misc. Petition under Section 482 of Code of Criminal Procedure has been filed by the petitioner Rajkumar against the order dated 06.09.2021 passed by learned Additional Sessions Judge, No.3, Chittorgarh by which the revision petition filed by the petitioner has been dismissed and upheld the order dated 25.02.2020 passed by Additional Judicial Magistrate, Chittorgarh rejecting the application filed by the accused petitioner under Section 311 Cr.P.C.for re-examination.

2. Brief facts of the case are that the respondent complainant filed a complaint under Section 138 N.I. Act stating therein that the petitioner had taken a loan of Rs. 11,12,000/- for his domestic expenses and executed an agreement dated 11.08.2015. It was further stated that the accused handed over three post dated cheques in the sum of Rs. 4,00,000/-, Rs. 4,12,000/- and Rs. 4,00,000/-. However, when the said cheques were presented in the Bank, the same were dishonoured. Thereafter, the complainant sent a legal notice and later on a complaint was registered under Section 138 of the N.I. Act.

3. After registration of the complaint, the complainant was examined as AW/1 and counsel for the petitioner cross-examined the complainant. The petitioner was examined before the trial court as DW/1 and the counsel for the complainant crossexamined the petitioner. Thereafter, the petitioner moved an application before the trial court with the prayer that since his previous counsel had not cross-examined the complainant on the issue of agreement Ex.P/15 and he has now changed the counsel, therefore, the complainant may be recalled for cross-examination.

4. The learned trial court after considering the entire aspect of the matter and reply filed on behalf of the respondent complainant, rejected the application filed by the petitioner vide order dated 25.02.2020. The revision petition filed by the petitioner also came to be dismissed vide order dated 06.09.2021

5. Counsel for the petitioner submits that the complainant had produced the agreement Ex.15 to prove his case, however, during the course of cross-examination, the counsel did not question about the veracity of said agreement, therefore, in the interest of justice, the trial court ought to have permitted his counsel for reexamination of the complainant. Learned counsel submits that the intention of the legislation of Section 311 Cr.P.C. is that the best available evidence must be brought before the court to prove a fact or point in issue and therefore, looking to the fact that it was an inadvertent mistake on the part of counsel for the petitioner, the trial court ought to have recalled the witness PW/1 for just decision of the case. Learned counsel for the petitioner placed reliance on the judgments of this Court in the case of Piyush Dosi Vs. State of Raj reported in 1017(3) Cr.L.R. (Raj. 1603, High Court of Madhya Pradesh in the case of Shankar lal Vs. State of M.P ) Misc. Criminal Case No. 3851/2023 dated 03.02.2023, Kerala High Court in the case of Thachanalil Shyju Vs. State of Kerala (Crl. MC No. 5515/2019) dated 23.02.2023 and Manu Dev Vs. State of Kerala (Crl. MC No. 1034/2023) dt 13.02.2023.

6. Per contra, counsel for the respondent opposed the prayer and submitted that when the complainant was examined, a thorough cross-examination was conducted by counsel for the petitioner and now at this belated stage, the accused petitioner has filed application under Section 311 Cr.P.C. The accused has filed the application only to delay the proceedings and the trial court and rightly rejected the application filed by the accused by assigning any cogent reasons.

7. I have perused the impugned order and heard rival contention of the parties.

8. It is not disputed that evidence of complainant PW/1 Nirmal Singh and defence witness DW/1 Rajkumar has been recorded and cross-examination has also been done by the accused and complainant respectively. The complainant was examined as PW/1 on 16.09.2016 and aft