: Discretionary power of trial courts under Section 311 Cr.P.C to summon/recall and re-examine any witness.

JUDGMENT

Manoj Bajaj, J. - This petition under Section 482 Cr.P.C has been filed by the petitioner (accused) to challenge the order dated 09.04.2019 (Annexure P-3), whereby the Judicial Magistrate First Class, Ludhiana proceeded to dismiss his application under Section 311 Code of Criminal Procedure for recalling witness Amit Verma (complainant) for further cross-examination. The trial pertains to complaint brought by respondent under Section 138 of Negotiable Instruments Act, 1881.

2. The respondent filed a criminal complaint bearing No.COMA-7574/2017 dated 03.07.2017 under Section 138 of Negotiable Instruments Act, 1881, against the petitioner on the ground that the cheque bearing No.201330 dated 22.05.2017 for sum of Rs. 2,50,000/- drawn at ICICI Bank Ltd. Jamalpur, Samrala Road, Ludhiana issued in favour of the complainant stood dishonoured because of "insufficient funds". After appearance of the accused in the said complaint case, the witnesses brought by the complainant were cross-examined. In all there were five witnesses examined by the complainant in support of his case and after completion of their cross-examination, evidence was closed on the statement of the complainant on 08.02.2019. Thereafter, the statement of accused was recorded under Section 313 Cr.P.C on 13.02.2019. An application under Section 311 Cr.P.C was filed by the accused for recalling complainant for further cross-examination. The said application is Annexure P-2. The ground raised in the application was that since CW-5, namely, Vikrant Sharma who already stands examined, was not cited as a witness in the list of witnesses filed with the complain, however, his cross-examination by the defence counsel introduced certain new facts on record, and therefore, in order to bring the true facts, further cross-examination (re cross-examination) of the complainant (CW-1) is necessary. It is pleaded that in case the permission is granted no prejudice shall be caused to the complainant, however, denial would cause prejudice to the accused. The said application was opposed by filing reply on behalf of the complainant, however, the copy of the same is not on record, but the impugned order contains the contents of the reply.

3. The trial Court after examining the pleadings of both the sides proceeded to dismiss the application under Section 311 Cr.P.C vide impugned order dated 09.04.2019.

4. Learned counsel for the petitioner/accused has contended that in view of the Section 138 of Indian Evidence Act, 1872, re-cross-examination of the accused is necessary and the trial Court has committed an error in not considering the said provision and wrongly declined the prayer for recallingCW-1-Amit Sharma for further cross-examination.

5. It is further contended that the witness CW-5 was not mentioned in the list of witnesses which is on record with the complaint as Annexure P-l wherein only three witnesses were mentioned by the complainant. Lastly, it is argued that in case the permission is granted, no prejudice shall be caused to the complainant.

6. After hearing learned counsel for the petitioner, this Court finds that application brought by petitioner under Section 311 Cr.P.C does not contain a ground that further cross-examination of complainant is mandatory in view of Section 138 of Indian Evidence Act, 1872. Even the contents of the petition do not contain any such ground much less re: Section 138 of Indian Evidence Act, 1872. In support of his argument, learned counsel for the petitioner has placed reliance upon judgment passed by this Court titled as "Kesar Singh vs. Jagdish Chander". 2018 (4) R.C.R (Criminal) 981.

7. Since this issue raised by the petitioner relates to the question of law, therefore, it needs to be examined. At this stage, it will be relevant to peruse Section 138 of Indian Evidence Act, 1872 which reads as under:-

"138. Order of examinations.-Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the