JUDGMENT :

Harpreet Singh Brar, J.

The present petition has been filed under Section 482 Cr.P.C. for setting aside the order dated 26.09.2022 passed by the learned Additional Sessions Judge, Kaithal whereby order dated 17.03.2022 passed by the learned Judicial Magistrate 1st Class, Kaithal dismissing the application filed by the petitioner for recalling the defence witness, has been upheld.

2. In brief, the facts are that respondent No.2-complainant has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) against the petitioner for dishonour of cheque bearing No.517220 dated 25.09.2017 for an amount of Rs.3,50,000/- drawn on the State Bank of India Anaj Mandi Pundri, District Kaithal, which was allegedly given by him for discharge of his legal liability. During the pendency of the said complaint, petitioner moved an application for recalling of DW1 Mukesh and summoning of Mr. K.L. Sharma, Advocate, who was appearing for the respondent No.2-complainant as a witness in his defence. The said application was dismissed by the learned Judicial Magistrate 1st Class, Kaithal vide order dated 17.03.2022 and the revision petition preferred against the said order also stands dismissed vide order dated 26.09.2022 passed by the learned Additional Sessions Judge, Kaithal. Hence, the present petition.

3. Learned counsel appearing for the petitioner submits that both the Courts below have gravely erred in dismissing the application moved by the petitioner for recalling of DW-1 Mukesh and summoning of Mr. K.L. Sharma, Advocate as a defence witness, as their examination was essential for just decision of the case and to meet the ends of justice. It is further contended that discretionary power under Section 311 Cr.P.C. can be exercised at any stage of trial. Both the witnesses sought to be recalled/summoned are material witnesses and therefore, the prayer sought in the present petition deserves acceptance.

4. Per contra, learned counsel appearing for respondent No.2-complainant submits that the Courts below have rightly dismissed the application filed by the petitioner under Section 311 Cr.P.C., as the same is sheer abuse of process of the court. The petitioner miserably failed to establish that as to how and in what manner, examination of both the witnesses is essential for just decision of the case. Furthermore, Mr. K.L. Sharma, Advocate was appearing as a counsel for the complainant and therefore, a conversation between a client and an advocate under fiduciary capacity cannot be used by the accused to his advantage and to the disadvantage of the complainant.

5. Having heard learned counsel for the parties and after perusing the record of the case, this Court does not find any merit in the arguments raised by the counsel for the petitioner.

6. The power under Section 311 Cr.P.C. can be exercised for summoning of witnesses at any stage of any inquiry, trial or other proceeding under this Code and the Court may 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. The Court can summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just adjudication of the case. The Court is required to form an opinion whether such evidence is necessary for a just and proper decision in that case.

7. A perusal of the application filed by the petitioner for summoning of defence witnesses reveals that the same is bereft of any ground as to how and in what manner, summoning/examination of both the witnesses sought to be summoned are essential for just decision of the case. The relevant content of the application, annexed with the present petition as Annexure P-3, is reproduced as under:-

"1. That the above noted complaint is pending before this Hon'ble Court and the same is fixed for today for defence evidence.

2. That the applicant/accused wants to summo