Ensuring a fair trial under Article 21 necessitates allowing cross-examination even after prior failures to do so.

ORAL ORDER

1. The petitioner challenges the order passed by the learned Magistrate, whereby the application filed by the petitioner/accused under Section 311 of the Code of Criminal Procedure , 1973 (Cr.P.C.) to recall the complainant for cross-

examination was rejected.

2. The respondent filed a private complaint under Section

200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act , 1881 (NI Act). The petitioner/accused entered appearance before the trial court. The complainant’s examination-in-chief was recorded, and thereafter the matter was posted on several occasions for the cross-examination of the complainant. Despite being granted sufficient opportunities, the petitioner, without valid reason, failed to cross-examine the complainant. Consequently, the trial court passed the impugned order rejecting the petitioner’s application under Section 311 of Cr.P.C.

3. However, considering that if the petitioner is not permitted to cross-examine the complainant, the evidence of the complainant will remain unchallenged and, in all probability, will lead to the conviction of the accused for the offence punishable under Section 138 of the NI Act, it is essential to ensure a fair trial as guaranteed under Article 21 of the Constitution of India. Therefore, it would be appropriate to grant one more opportunity to the accused to cross-examine the complainant.

4. Accordingly, the petition is allowed. The impugned order dated 20.11.2024 passed by the learned Principal Civil Judge and JMFC, Haveri, in CC No.1142/2020, rejecting the application filed by the petitioner/accused under Section 311 of Cr.P.C., is hereby set aside. Consequently, the said application is allowed.

5. The petitioner/accused is permitted to cross-examine the complainant/PW1 on the date fixed by the trial court. If the petitioner/accused fails to cross-examine the complainant on the specified date, the trial court shall proceed in accordance with law.