For just decision of case recall and re-examination of witness is essential.

The petitioner who is the accused in C.C.No.5942 of 1997 pending on the file of the VII Metropolitan Magistrate, George Town, Chennai has filed the above Criminal Original Petition seeking to set aside the order dated 18.7.2002 made in Crl.M.P.No.7016 of 2002 by the Court of VII Metropolitan Magistrate, George Town, Chennai on certain grounds as brought forth in the grounds of the petition.

2. The order which is sought to be set aside is one passed by the trial Court on a petition filed under Section 311 of the Cr.P.C. by the respondent herein before the trial Court alleging that it was very much essential to mark the Power of Attorney dated 17.6.1996, the order passed by the High Court of Kerala dated 31.7.1985 and the Form of Registration with Rules and Regulations, Statements of Accounts, further stating that on account of non availability of documents at the time of the chief examination they were unable to mark those documents and since only just before filing of the petition, in Crl.M.P.No.7016 of 2002, they came to be in possession of those documents, further pleading that no prejudice would be caused to the other side in permitting the documents to be marked by the respondent who is the complainant before the lower Court the respondent has filed the said petition. It is this petition that the lower Court has allowed as per its order dated 18.7.2002 made in the said Crl.M.P. testifying the validity of which the respondent therein, who is the accused has come forward to file the above Criminal Original Petition.

3. The contentions of the petitioner/accused are that the learned Magistrate, without application of the mind that earlier his predecessor in office has passed an order in Crl.M.P.No.3381 of 2000, has passed the second order in Crl.M.P.No.7016 of 2002; that no such two orders could be passed on one and the same subject and hence the order dated 10.7.2002 made in Crl.M.P.No.7016 is illegal; that only to fill up the lacuna after an inordinate delay of passing the first order the respondent has come forward to file the second application for one and the same purpose and under one and the same section which is erroneous and liable to be set aside.

4. During arguments, the learned counsel appearing on behalf of the petitioner/accused would point out that it is a case registered under Section 138 of the Negotiable Instruments Act; that on a single memo filed, the lower Court has passed two orders one on 10.7.2002 and the other on 18.7.2002 allowing the same, which is erroneous and liable to be set aside. The learned counsel would cite a judgment at this juncture reported in RAJENDRA PRASAD vs. NARCOTIC CELL (1999)6 SUPREME cOURT CASES 110), wherein it is held that power under Section 311 of C.P.C. recalling the witnesses or re-summoning the witness cannot be exercised to fill up “lacuna in prosecution case” and would point out that there is a bar against filling up the lacuna as laid down in 1991 Supplemental (1) SCC 271.

5. Yet another judgment cited by the the learned counsel for the petitioner is one reported in M/S.DANDY KNIT GARMENTS AND ANOTHER vs. M/S.SUBIKSHA SPINNERS (P) LTD., (2000 CRI.L.J.624) wherein, also the same proposition has been held to the effect that the prosecution cannot be allowed to fill up lacuna by filing application under Section 311 and examining witnesses in support of the documents -- defects in prosecution cannot be cured by marking of a document at belated stage and examining witnesses in support thereof. On such arguments the learned counsel would pray to allow the above Criminal Original Petition setting aside the order dated 18.7.2002 passed by the lower Court in Crl.M.P.No.7016 of 2002.

6. In reply, the learned counsel appearing on behalf of the respondent would submit that the petitioner’s petition for discharge was dismissed on 2.5.2000 by the lower Court and that his petition to recall P.W.1 was allowed; that instead of cross-examining the witness, the petitioner has come