The power to recall a witness should be exercised judiciously and for the just decision of the case, and the additional evidence must not be received as a disguise for retrial or to change the nature of the case against either of the parties.

JUDGMENT

A. K. Mishra, J. - In this proceeding U/s. 482 Cr.P.C., prayer has been made to set aside the impugned order dated 05.04.2016 passed in 1CC Case No.1098/2014 by the learned JMFC, Bhubaneswar in allowing the prayer of the complainant to exhibit demand letter, postal receipt and its reply on recall as he could not exhibit the same in course of his examination-in-chief.

2. The present petitioners are accused persons in 1CC Case No.1098/2014. The opposite party was the complainant. The trial was proceeded for the offence U/s138 of the Negotiable Instruments Act, 1881. The complainant was examined as P.W.1, cross-examined and discharged on 18.03.2015. Thereafter on some day, prayer was made to exhibit above documents on his recall. The accused persons filed objection.

Learned JMFC by detailed order allowed the same stating that the evidence of P.W.1 was essential for the just decision of the case and such examination would not cause any prejudice to the defence.

3. Learned counsel for the petitioners submits that as no foundation was laid in the complaint petition and the documents were not filed till the impugned order, the defence was totally prejudiced by introduction of the new facts and for that the impugned order is not sustainable in the eye of law. In support of his contention, he relies upon the decisions of the Hon'ble Supreme Court in the case of Sabitha Ramamurthy and Anr. vrs. R.B.S. Channabasavaradhya, (2006) AIR SC 3086 and Mannalal Chamaria and Anr. vrs. State of West Bengal and Anr., (2014) 58 OCR 160 (SC) .

Learned counsel for the opposite party submits that notice issued and reply given by the accused persons are mentioned in the complaint petition, as such the order of the learned JMFC does not suffer from any illegality in view of the object of Section 311 of the Cr.P.C.

Both the cited decisions on behalf of the petitioners are on the point that whether the accused persons are to be proceeded with in a case U/s.138 of the N.I. Act and for that it was reiterated therein that the sufficient material was necessary to decide the issue of process. On the facts of this case, these two cited decisions are quite distinguishable.

4. Section 311 of the Cr.P.C. empowers the Court to recall and re-examine any person already examined inter alia at any stage of enquiry or trial if the evidence appears to be essential to the just decision of the case.

In the decision reported in the case of Mannan Sk and others vrs. State of West Bengal and another, (2014) AIR SC 2950 it has been held at para-10 in the following way:-

"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word "shall". It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words "essential to the just decision of the case" are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decis