The court affirmed that the power to recall witnesses under Section 311 is essential for a just decision, even post evidence closure, emphasizing that it's vital to uphold fair trial rights.

JUDGMENT :

Heard.

1. Rule.

2. Rule made returnable forthwith by consent of the parties.

3. The petitioners are facing a trial for the offence punishable under Section 138 of the Negotiable Instruments Act, in the Court of learned Judicial Magistrate First Class, Court Room No.14, Aurangabad. The petitioners are aggrieved by an order dated 13.12.2022 passed by the learned Court on an application below Exhibit-89 in the said proceeding, rejecting their application. The petitioners had fled an application under Section 311 of the Code of Criminal Procedure, for recall of complainant/witness for re- examination. The learned Magistrate however holding that the prayer of the accused is not covered within the ambit of re-examination and therefore the question of no re-examination order does not arise. The Court therefore held that the accused has already concluded the cross-examination of complainant on 07.12.2022 and also closed his evidence. After closing the evidence, the application moved on 16.12.2022 and that would amount to filling the lacuna in the case and rejected the application. It is thus the petitioners are before this Court.

4. The facts giving rise to the present petition in short, are as under; that the complainants/respondent no.2 & 3 fled a complaint under Section 138 of the N.I. Act. The petitioner no.1 happens to be a Company and petitioner no.2 and 3 are the Directors of the Company. The petitioners and respondent no.2 and 3 had executed a memorandum of understanding dated 20.06.2015, whereby the complainants agreed to purchase 2BHK fat admeasuring 458 Sq.Ft. for consideration of Rs.25,62,500/- in Vasai, District Palghar. Upon the said agreement, complainants paid Rs.16,75,000/-through cheque to the petitioner no.1. The said amount was credited in the account of the Company/petitioner no.1. However no possession was handed over. Complainants therefore were pursuing the matter since the possession was not handed over. The accused issued 24 cheques for total amount of Rs.26,76,500/-, all bearing date 17.01.2022. On presentation, all the cheques came to be dishonoured. The petitioners received intimation on 25.05.2022. Complainants then issued notice of demand through RPAD. Since the amount was not paid in spite of notice, a complaint came to be lodged.

5. The complaint proceeded further. The evidence of the complainant started and the application came to be fled for recall and the same came to be rejected. The main submission of the petitioners is that the trial Court can pass the order under Section 311 of Cr.P.C. at any stage of the trial. The petitioners invite attention to provision of Section 311 of Cr.P.C. to submit the Court has the power to recall the witness at any time. In this case, immediately on closure of the evidence, it was realized that certain material questions inadvertently were not asked by the Lawyer during the course of cross-examination for 313 statements. He also submits that the learned Advocate for the accused completed his cross-examination just within one paragraph and did not ask any questions as per the instructions. He submits that it was necessary to allow the application.

. The learned Advocate for the petitioners relied upon the judgment passed by the Hon’ble Apex Court in Criminal Appeal No.1021/2022 in the case of Varsha Garg Vs. The State of Madhya Pradesh and Ors., reported in 2022 LiveLaw (SC) 662.

6. The learned Advocate for respondent no.2 and 3 submits that under the garb of further cross-examination, petitioners in fact want to Fill up the lacuna in their case. The application is not bonafid