JUDGMENT :

Gurvinder Singh Gill, J.

1. The petitioner assails order dated 21.11.2023 (Annexure P-4) passed by the learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, vide which an application filed by the petitioner for recalling the respondent/complainant for further cross-examination has been declined.

2. The petitioner is arrayed as an accused in the complaint under Section 138 of the Negotiable Instruments Act filed by the respondent with respect to dishonor of a cheque for an amount of Rs.4 lakhs which the petitioner had allegedly issued in discharge of his liability i.e. to return the loan amount.

3. After the complainant had concluded his evidence, the statement of the petitioner/accused in terms of Section 313 Cr.P.C. was recorded on 20.12.2022. Thereafter, the petitioner availed some opportunities for leading defence evidence, but later filed an application under Section 311 Cr.P.C. seeking recalling of the complainant for further cross-examination. The said application dated 19.09.2023 was, however, dismissed by the learned Judicial Magistrate Ist Class vide impugned order dated 21.11.2023 (Annexure P-4), which is being assailed in this Court.

4. Learned counsel for the petitioner submits that some material questions pertaining to the relevant issues could not be put to the complainant during the course of his cross-examination and that for just decision of the matter and for eliciting the truth, the same are required to be put to the complainant and as such, recalling of the complainant for his further cross-examination is necessary. Learned counsel further submits that in case the petitioner is not permitted to recall the complainant for his further cross-examination, the petitioner shall stand seriously prejudiced in establishing his defence. It has been submitted that the law with regard to recalling is fairly liberal and an application under Section 311 Cr.P.C. can be allowed at any time before pronouncement of the judgment.

5. This Court has considered the aforesaid submissions.

6. 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 recall and re-examine any such person if his evidence appears to be essential to the just decision of the case."

7. The provisions of Section 311 Cr.P.C. have been interpreted in a number of decisions of the Hon'ble Supreme Court. The object of Section 311 Cr.P.C. (earlier 540 Cr.P.C) as well as limitation for its use came to be defined by Hon'ble Apex Court in Mohan Lal Shamji Soni v. Union of India, 1991(3) RCR (Criminal) 182. Para 10 wherein its importance has been highlighted reads as under:

'10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an