CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

ORAL ORDER

The petitioner is before this Court calling in question order dated 28-03-2024 passed rejecting the applications filed under Section 311 of the Cr.P.C. seeking to further cross-examine D.W.1.

2. Heard Sri Prajith C, learned counsel appearing for petitioner and Sri P Nehru, learned counsel appearing for respondent in Crl.P.No.3716 of 2024.

3. Facts in brief, germane, are as follows:

3.1. The petitioner in both these cases are common. The complainants differ. The petitioner is the complainant, the respondents are the accused. The accused in both these cases are husband and wife. A transaction between the complainant and the respondents/accused leads the accused to render cheques in favour of the complainant/petitioner. The cheques when presented are dishonoured for the reasons indicated therein. The dishonour of the cheques has led the complainant to file a private complaint under Section 200 of Cr.P.C. which later came to be numbered as C.C.Nos.5277 of 2018 and 5278 of 2018 before the concerned Court.

3.2. The issue in the lis is not with regard to the merit of the claim of the petitioner or the defence of the respondents accused. The issue is with regard to rejection of applications filed under Section 311 of the Cr.P.C., by the petitioner/complainant seeking recall of D.W.1 for the cross-examination. The concerned Court, on the score that the petitioner had filed similar applications earlier and has not availed the opportunity of cross-examination of DW1 has rejected the applications. The rejection of which has driven the petitioner to this Court and the subject petition.

4. The learned counsel appearing for the petitioner submits that if one opportunity is rendered, he would conclude the cross examination on the date fixed by the concerned Court and would not seek any adjournment thereof.

5. The learned counsel appearing for the respondents submits that it should be only on imposition of costs and not allowing the petition simpliciter.

6. The afore-narrated facts are not in dispute. The issue in the lis is with regard to the application under Section 311 of the Cr.P.C., It is the contention of the petitioner that the cheques issued by the accused are dishonoured, therefore, it is for the petitioner to prove that the cheques were issued for a legally enforceable debt, as has been narrated in the complaint. The petitioner did file two applications of the kind between the years 2022 to 2024, which come to be allowed by the concerned Court, but she has failed to cross-examine and later files applications seeking further cross examination of DW1, which come to be rejected.

7. The purport of Section 311 of the Cr.P.C. need not detain this Court for long or delve deep into the matter. The Apex Court in the case of VARSHA GARG v. STATE OF MADHYA PRADESH¹2022 SCC OnLine SC 986 has held as follows:

31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”: (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court “shall” summon and examine or recall and re-examine any such person “if his evidence appears to the Court to be essential to the just decision of the case”. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the