The court's decision emphasized the importance of ensuring the truth is revealed without filling any lacunae in the case, and the essentiality of evidence for the just decision of the case under Section 311 Cr.P.C.

ORDER :

Bhaskar Raj Pradhan, J.

This common order shall dispose of two petitions under Section 482, Code of Criminal Procedure (Cr.P.C) preferred by two petitioners against two orders, both dated 20.02.2017, rejecting two applications under Section 311, Cr.P.C seeking prayers to recall and re-examine the common Complainant, one Sajan Kumar Agarwal who had initiated Private Complaint Case No. 06/2015 and Private Complaint Case No. 10/2015 against Anil Oberoi and Subash Chaturvedi, the petitioners herein, respectively, as both the petitions raises identical issues.

2. Briefly the relevant facts are:-

(i) The petitioners in both the petitions under Section 482 Cr.P.C are facing trial for alleged commission of offence under Section 138/142 of the Negotiable Instruments Act, 1881. The records would reveal that in Crl. Misc Case No. 02/2017 the application under Section 311 Cr.P.C was preferred on 16.11.2016 after the examination of the petitioner as accused had been completed under Section 313 Cr.P.C in Private Complaint Case No. 06/2015. In Criminal Misc Case No. 03/2017 the application under Section 311 Cr.P.C was filed by the petitioner when some of the witnesses of the Complainant were yet to be examined in Private Complaint Case No. 10/2015.

(ii) The common grounds taken by both the petitioners in their applications under Section 311, Cr.P.C were that the case was conducted by one learned Counsel, Mr. Dinesh Agarwal, Advocate who due to serious illness retired from the case and in his place the present counsel was engaged by the petitioners. It was further contended that while preparing for the case it was noticed that in cross-examination certain vital questions touching the root of the matter had not been put to the Complainant. It was also contended that the Complainant had not been confronted with a vital document in possession of the petitioner. The petitioners averred that it was the specific case of the petitioners that the cheques in question was handed over as security and vital questions on this aspect had not been put to the complainant nor had the complainant been confronted with documentary evidence on record. It was also averred that the two Private Complaints have been filed on the same set of facts and it was necessary to put common questions on some of the documents relied on by the complainant.

(iii) The said applications under Section 311 Cr.P.C was contested by the complainant. Replies with preliminary objections as well as on merits were filed praying for dismissal of the said applications. It was contended, inter alia, that sufficient time have been taken by the petitioners for cross-examination of the complainant who was examined at length by the said learned counsel, Mr. Dinesh Agarwal in the presence of the petitioners. It was also contended that relevant documents pertaining to the case was supplied well in advance and that the petitioner were trying to mis-lead the Court on the plea of being laymen and further cross-examine the complainant to fill up the lacunae in the case which is not permissible. In Private Complaint Case No. 06/2015 it was further contended that the application under Section 311 Cr.P.C had been filed at a belated stage, after more than thirteen months after the closing of the witnesses of the complainant and the examination of the accused under Section 313 Cr.P.C.

(iv) On 20.02.2017 both the applications filed by the petitioners under Section 311 Cr.P.C in both the criminal complaints were taken up for hearing by the learned Trial Court. During the hearing a list of questions which the petitioner proposed to put to the complainant was also furnished to the learned Trial Court for its examination with a request, however, not to disclose the same to the complainant to protect the defence of the petitioners.

(v) The learned Trial Court while examining the issues raised, has found that the record of proceedings in both the Private Complaints reveals that an adjournment was sought on 09.11.20