The court upheld the trial court's discretion under Section 311 Cr.P.C. to deny the recall of a witness, emphasizing the necessity of timely evidence for a just decision.

Order :

(KULDEEP MATHUR, J.)

1. By way of filing the present criminal misc. petition under Section 528 BNSS, the petitioner has prayed for the following reliefs:-

“(i) The impugned order dated 15/01/2025 and 28/08/2024 be set aside.

(ii) The application of the petitioner under section 311 Cr.P.C., be allowed and complainant/ Respondent be called/ summoned for cross examination on the cost of petitioner.

(iii) Any other relief for which the petitioner is entitle be given.”

2. Briefly stated facts of the case are that the respondent- complainant filed a compliant under Section 138 N.I. Act stating therein that the accused- petitioner had taken a loan of Rs.5,00,000/- from him. The accused- petitioner handed over a post dated cheque No.003767 for the sum of Rs.5,00,000/- against the loan amount. However, when the cheque was presented in the Bank of Maharashtra, Branch- Hanumangarh Town, the same was dishonoured with a remark ‘Account Blocked’. The complainant in that view of the matter, sent a legal notice and later on, a complaint was registered under Section 138 of the N.I. Act. After registration of the complaint, the respondent- complainant was examined before the learned trial Court on 30.06.2022. The accused- petitioner after one year of his examination before the learned trial Court moved an application with a prayer that certain important questions could not be asked to respondent- complainant therefore, he may be recalled for cross-examination.

3. The learned trial Court after considering the entire aspect of the matter and after perusing the reply filed on behalf of the respondent-complainant, rejected the application for recalling the complainant vide order dated 28.08.2024. The revision petition filed by the accused- petitioner also came to be rejected vide order dated 15.01.2025.

4. Challenging the order dated 15.01.2025 and order dated 28.08.2024 filed by the accused- petitioner under Section 311 Cr.P.C., learned counsel for the petitioner contended that though the cheque in question belongs to a firm but the respondent- complainant has not made the firm party in the complaint submitted by him under Section 138 N.I. Act. Therefore, an opportunity to ask the question that why the cheque belonging to the firm came to be issued by the respondent-complainant, should to be given to the accused-petitioner by allowing the application filed under Section 311 Cr.P.C. Learned counsel submitted that the learned trial Court committed an error in rejecting the application filed under Section 311 Cr.P.C. Learned counsel submitted that a litigant cannot be made to suffer due to an inadvertent mistake on the part of his counsel. The intention of legislation for Section 311 Cr.P.C. is that the best available evidence must be brought before the Court to prove a fact or pointing issues. Therefore, looking to this aspect of the matter, the learned trial Court ought to have recorded the statements of the witness by recalling him to arrive at a fair and just decision in the case.

5. Heard learned counsel for the petitioner. Perused the material available on record.

6. It is not in dispute that evidence of the respondent-complaint has been recorded and cross examination has also been done by the accused. The application under Section 311 Cr.P.C. for summoning the complainant again for questioning him on certain issues has been filed after about one year of recording of his evidence. The only ground taken for recalling the witness is that due to inadvertence, the counsel for the accused-petitioner could not ask questions regarding the cheque belonging to the firm or not and as to how the same came to be issued by him.

7. A bare perusal of the application dated 10.07.2023 filed under Section 311 Cr.P.C. would indicate that it is nowhere mentioned as to how the recalling of witness i.e. respondent- complainant is essential for arriving at a fair and just decision in the case.

8. The Hon'ble Supreme Court of India in the case of “Rajaram Prasad Yadav vs.