The court affirmed that under Section 311 CrPC, the recall of witnesses is permissible to ensure justice and allow the accused to present a complete defence, emphasizing the necessity of evidence for a just decision.

JUDGMENT

Deepak Gupta, J.

By way of this petition filed under Section 482 CrPC, petitioner prays for quashing of the impugned order dated 24.05.2022 (Annexure P4) passed by ld. JMIC, Talwandi Sabo, whereby trial Court has allowed application dated 04.04.2022 under Section 311 CrPC (Annexure P2) filed by the respondent-accused for recalling defence witness Jasvir Singh, Mandi Supervisor, Market Committee, Maur District Bathinda along with auction register in a complaint No.288 of 2017 titled 'Tej Ram v. Shamsher Singh', under Section 138 of the Negotiable Instrument Act.

2.1 Complaint (Annexure P1) was filed by the petitioner to prosecute the respondent under Section 138 of the NI Act claiming that in order to discharge his liability i.e. to repay the loan amount borrowed by him, accused had issued a cheque dated 26.05.2017 for Rs.2,50,000/-, which on presentation was dishonoured due to 'insufficient funds' in the account of the respondent-accused. Statutory notice was sent to the accused, but in vain.

2.2 After recording preliminary evidence, summoning order was passed. Petitioner concluded his evidence by examining himself as CW1 besides one Jagtar Singh as CW2. Statement of the accused under Section 313 CrPC was recorded and in his defence, he examined Nishant Garg, Branch Manager, Punjab and Sindh Bank, Maur Mandi as DW1; and Jasvir Singh, Mandi Supervisor, Market Committee Maur as DW2 besides Mohit Joshi, Manager, PNB Bank, Maur as DW3. He also tendered certain documents.

2.3 Respondent then moved an application under Section 311 CrPC to recall the complainant for his further cross-examination, but later on withdrew the application and the same was dismissed as withdrawn on 06.10.2021.

2.4 Respondent then moved another application under Section 311 CrPC to recall DW2 Jasvir Singh, Mandi Supervisor, Market Committee Maur, which has been allowed by way of the impugned order.

3.1 Assailing the aforesaid order, it is contended by ld. counsel that trial Court failed to consider that application under Section 311 CrPC was filed by the respondent-accused to recall his own witness. Examination-in-chief and cross-examination of the witness had already been conducted on all the material aspects. Simply because a suggestion had been given to the witness to the effect that the petitioner was doing the work of commission agency, could not be the ground to recall the witness at the instance of the respondent-accused. Ld. counsel contends further that Section 311 CrPC cannot be invoked to fill in the lacuna and that in case impugned order is allowed to sustain, it will result in re-trial.

3.2 Ld. counsel has relied upon a decision of this Court rendered in Shabbir Ahmad Laway @ Shabbir Kala v. Central Bureau of Investigation, Chandigarh [CRM-M-3659-2018 decided on 16.05.2018], wherein application was moved by the petitioner before trial Court for recalling prosecutrix for re-examination. It was found that aspects asserting in the application were not the new facts, having come to light later for requiring the recall of prosecutrix and so the petition was dismissed. Further reliance is placed upon a decision of this Court rendered in Baljinder Singh @ Kaka v. State of Punjab and another [CRR-495-2021 decided on 27.04.2021], wherein it was held by this Court that discretionary power under Section 311 CrPC is to be exercised judiciously and that failure of the defence to put certain questions cannot be the ground for recalling of the witness. Ld. counsel also refers to Jasbir Singh v. State of Punjab [CRM-M-32376-2016 decided on 08.05.2018], wherein it was found that application under Section 311 CrPC was not bona fide and the same had been moved with intention to delay the proceedings after examining as many as 8 defence witnesses.

4. Refuting the aforesaid contentions, ld. counsel for the respondent submits that petitioner-complainant had refused to be doing the work of commission agency; that DW2 Jasvir Singh was examined to prove the com