The main legal point established in the judgment is that the power under Section 311 Cr.P.C. should be exercised judiciously and with extreme care and caution, ensuring that the judgment is not rendered on inchoate, inconclusive, and speculative presentation of facts. The court emphasized that the denial of the accused's right to adduce evidence in support of the defense would amount to the denial of a fair trial.

Sandeep Sharma, J.

1. Instant petition is directed against order dated 18.8.2017, passed by the learned Judicial magistrate First Class, Manali in Cr. Case No. 69/188/2015, whereby an application having been filed by the petitioner-accused (hereinafter "accused") under Section 311 Cr.P.C. has been dismissed.

2. Facts, shorn of unnecessary details, necessary for the adjudication of the present case are that respondent-complainant (hereinafter "complainant") filed a complaint under Section 138 of the Negotiable Instruments Act against the accused, alleging therein that the accused had borrowed a sum of Rs. 7.00 Lakh from her and with a view to discharge his aforesaid liability, issued a cheque. Since cheque allegedly issued in favour of the complainant came to be dishonoured owing to "insufficiency of funds" complainant was compelled to initiate proceedings under Section 138 of the Act ibid in the competent court of law. Complainant, by way of an affidavit tendered her evidence in support of her claim put forth in the complaint. Accused also cross-examined the complainant, as is evident from Annexure P-3.

3. After conclusion of evidence of complainant, an application came to be filed on behalf of the accused under Section 311 CrPC praying therein to recall the complainant for cross-examination. Accused averred in the application that complainant needs to be cross-examined on the point that the cheque was never issued by the accused and complainant had failed to prove that it was in discharge of a legally enforceable debt. Accused also stated in the application that factum with regard to signatures on the cheque could not be put to the complainant as such, she needs to be cross-examined qua aforesaid aspect of the matter. By way of application referred herein above, accused also sought cross-examination of the complainant on the question as to what was the source of money allegedly lent by her to the accused. Since at the time of cross-examination, learned counsel representing accused had received a message that his mother was unwell, he hurriedly concluded the cross-examination and in this process inadvertently omitted to put aforesaid suggestions to the complainant.

4. Aforesaid prayer having been made by accused was vehemently opposed by the complainant by way of reply (Annexure P-6). Complainant alleged that the application has been filed with a view to fill up lacuna in the defence and with a view to linger on the proceedings. Complainant further claimed that she was cross-examined at length on all the aspects averred in the application as such, application deserves to be dismissed. Learned Court below vide order dated 18.8.2017 dismissed the application filed by the accused and listed the matter for recording statement of accused under Section 313 CrPC on 15.9.2017, whereafter, instant petition came to be filed before this court.

5. Mr. Rajnish Maniktala, learned counsel representing the accused, while terming impugned order passed by court below to be illegal and contrary to the law laid down by the Hon'ble Apex Court as well as this Court, strenuously argued that there is no application of mind by the court below while passing impugned order, as such, same deserves to be quashed and set aside. While referring to the provisions contained in Section 311 CrPC Mr. Maniktala contended that court enjoys vast power to summon, reexamine or recall a witness at any stage of proceedings, provided that the same is necessary for proper adjudication of the case. Learned counsel further contended that while exercising power under Section 311 CrPC paramount consideration of the court is to do justice to the case and court can examine a witness at any stage, even if same results in filling up lacuna or loop holes. While placing reliance upon judgment rendered by this Court in Cr. MMO No. 209 of 2017 titled Sardar Singh vs. State of Himachal Pradesh, learned counsel contended that it has been categorically held by this Court as well a