The power under Section 311 Cr.P.C. is discretionary and should be exercised to arrive at a just decision and do substantial justice to establish the rule of law.

JUDGMENT :

Vivek Singh Thakur, J.

Petitioner herein is complainant in a case Criminal Complaint No.253 of 2013, titled as Gagnesh Thakur v. Vishal Awasthi, preferred by him under Section 138 of the Negotiable Instrument Act (‘NI Act’ for short), which is pending adjudication before the trial Magistrate.

2. Respondent-accused had preferred an application, under Section 311 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), being Cr.MP No.2 of 2018 before the trial Magistrate, when the case was pending for arguments. The said application was allowed by the Magistrate vide order dated 1.2.2018.

3. Criminal Revision Petition No.8 of 2018, titled as Gagnesh Thakur v. Vishal Awasthi, preferred by the complainant against the said order, stands dismissed by Additional Sessions Judge(II), Mandi, District Mandi, Himachal Pradesh, vide order dated 10.10.2018.

4. Present petition has been filed, invoking provisions of Section 482 Cr.P.C., assailing aforesaid orders for setting aside the same, by rejecting the prayer of the respondent-accused to lead further/additional evidence/ cross-examine the complainant.

5. I have heard learned counsel for the parties and have also gone through record placed before me.

6. Admittedly, respondent-accused Vishal Awasthi is son of Devinder Prakash Awasthi. Complainant Gagnesh Thakur has preferred two complaints. One against respondent-accused Vishal Awasthi and the other against Devinder Prakash Awasthi, claiming that he had given Rs.5,00,000/- to Vishal Awasthi during the months of August 2011 to October 2011, on different dates, as Vishal Awasthi was in dire need of money for his business requirement and the cheques issued by Vishal Awasthi for repayment of the said amount had been dishonoured. Second complaint was preferred by Gagnesh Awasthi against Devinder Prakash Awasthi alleging that in the money of July 2011, Devinder Prakash Awasthi borrowed Rs.2,00,000/- as he was in dire need of money for his domestic requirement and the cheque issued by Devinder Prakash Awasthi for repayment of the said amount had been dishonoured.

7. Admittedly, trial in case of Devinder Prakash Awasthi ended on conviction of Devinder Prakash Awasthi. However, Devinder Prakash Awasthi has assailed his conviction. Whereas, trial in present case of Vishal Awasthi is pending before the Magistrate.

8. In Vishal Awasthi’s case, statement of complainant Gagnesh Thakur, recorded in Devinder Prakash Awasthi’s case, has been produced in evidence as Ex. DW-3/A, but at time of cross-examination of Gagnesh Thakur, which took place prior to production of statement Ex. DW-3/A, contents of the said documents were not put to Gagnesh Thakur.

9. In aforesaid circumstances, an application, under Section 311 Cr.P.C., was preferred on behalf of respondent-accused Gagnesh Thakur for leading additional evidence, i.e. to re-examine complainant Gagnesh Thakur, as well as to lead additional evidence of the concerned Banks.

10. The aforesaid application was opposed by Gagnesh Thakur by filing reply to the application. However, after taking into consideration the material placed on record, the Magistrate allowed the application.

11. Section 311 Cr.P.C. reads as under :

“311. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

12. Section 311 Cr.P.C. empowers the Court to summon any person as a witness or recall and re-examine any person already examined or to examine any person, though not summoned as a witness, in case such evidence appears to the Court to be ‘essential to the just decision of the case’. Such power can be exercised by the Court at any s