The court emphasized that the power to recall witnesses under Section 311 Cr.P.C. must be exercised judiciously, ensuring it is essential for a just decision and not merely to fill gaps in evidence.

JUDGMENT

Mr. Gurvinder Singh Gill, J.

The petitioner-Rajesh Kumar(accused) assails order dated 28.11.2023 (Annexure P-6) passed by learned Additional Sessions Judge, Gurugram vide which a revision petition filed by the petitioner has been dismissed. The said revision was against order dated 26.7.2023 (Annexure P-4) passed by JMIC, Gurugram, dismissing petitioner's application filed under Section 311 Cr.P.C. for recalling of the complainant i.e. respondent No.1-Gurmeet Singh, in a complaint filed under Section 138 of Negotiable Instruments Act.

2. The complainant alleges that he had paid an amount of Rs. 57,50,000/- to the accused regarding purchase of land but the accused refused to execute the sale deed. After much persuasion accused agreed to return back an amount of Rs. 50 lakhs to the complainant and towards partial discharge of said liability issued cheque bearing No.245035, 245036 and 245037 dated 20.09.2017, 20.10.2017, 20.11.2017 respectively, all drawn on State Bank of India, Mehrauli Road, Gurgaon for Rs. 1 lakh each. However, upon presentation of the said cheques, the same were dishonoured and consequently the complainant instituted a complaint under Section 138 of Negotiable Instruments Act, against the petitioner wherein he was summoned by the learned Judicial Magistrate 1st Class vide order dated 09.03.2018.

3. Pursuant to appearance of the petitioner before the trial Court and consequent upon substance of accusation having been made known to the petitioner and the petitioner having pleaded not guilty, the statement of the complainant and of his witnesses were recorded, who were duly cross-examined by learned counsel for the accused.

4. However, after the accused had examined one witness in his defence evidence, an application dated 19.4.2023(Annexure P-3) was filed by the petitioner under Section 311 Cr.P.C., for recalling the complainant for further cross-examination. Learned Judicial Magistrate 1st Class dismissed the aforesaid application vide order dated 26.7.2023 (Annexure P-4). Aggrieved by the said order, the petitioner filed a revision petition before the learned Additional Sessions Judge, which also came to be dismissed vide order dated 28.11.2023 (Annexure P-6) which has been impugned before this Court.

5. Learned counsel for the petitioner, while assailing the impugned order submitted that it was pursuant to recording of statement of DW i.e. a Manager of ICICI Bank that certain new facts came to be known to the accused and that the complainant was required to be confronted with the said facts. It has been submitted that in case, the petitioner is not permitted to further cross-examine the complainant, the same will leave petitioner seriously prejudiced in his defence and would lead to miscarriage of justice.

6. Learned counsel further submitted that the scope of Section 311 Cr.P.C. is very wide and that approach of the Courts is required to be very liberal so as to ensure that the accused is not left handicapped in any manner in building up his defence. It has been submitted that an application under Section 311 Cr.P.C. can be allowed at any stage before pronouncement of judgment. Learned counsel in order to hammer forth his aforesaid submissions places reliance upon Mannan Sk. And others v. State of West Bengal and Another, 2014 (13) SCC 59; P. Sanjeeva Rao v. State of A.P. 2012(3) RCR (Criminal) 653, SC and Kesar Singh v. Jagdish Chander 2018(4) RCR (Criminal) 981, P&H.

7. This Court has considered the submissions raised above and have gone through the judgments pressed into service.

8. Before proceeding further it would be necessary to examine the relevant provisions of law:-

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

"Any court may, at any stage of any inquiry, trial or other proceedings 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 recal