ORDER

With the consent of parties, matter is heard finally.

This petition is filed under Section 482 of Cr.P.C challenging the order dated 14/01/2023 passed in SC NIA No.1112/2015, whereby the court below has dismissed the application under Section 311 of Cr.P.C filed by the applicant. As per the facts of the case, a complaint case has been filed under Section 138 of Negotiable Instrument Act by complainant-respondent no.1 against the applicant. However, during the pendency of complaint, complainant Manish Sharma passed away and his wife namely Jyoti Sharma has come on record as his legal representative. The notices were issued to the accused and thereafter complainant was examined but counsel for accused has not cross examined the complainant properly as has been pleaded by the petitioner in this petition, therefore, an application under Section 311 of Cr.P.C has been moved before the Court so as to call the complainant in the witness box again for further cross examination. The application was rejected by the Court vide order dated 14/01/2023 on the ground that complainant has been examined on 24/11/2022 and her cross examination has also been completed in which counsel for accused got full opportunity and application has been moved with an intention to fill-up the lacuna which has been left by earlier counsel. The Court relying upon the Supreme Court decision rejected the application on the ground that object of Section 311 of Cr.P.C is not to fulfill the lacuna, but it is for the Court to see if any material question is to be asked from the witness and the same is necessary for proper adjudication of the case, the witness can be called in the witness box but recalling of witness is not only for the purpose of filling up lacuna.

Shri Jain by making allegation and placing documents on record submits that the Advocate appeared on behalf of the accused did not discharge his obligation properly, therefore, application had to be allowed and one opportunity should be granted. He has also placed reliance upon the judgment reported in AIR 2022 SC 3707 (Varsha Garg Vs. State of Madhya Pradesh and others). I have heard the submissions made by counsel for parties and perused the record.

It is not a case in which transaction was directly made between the accused and complainant but in some case compromise took place between two persons and in lieu of that compromise cheque of the accused has been used and as such one case of Section 138 of Negotiable Instrument Act has been filed. The complainant has also expired and his wife has come on record as his legal representative. There were some important questions with regard to relationship of person with whom original transaction took place but that has not been asked.

The Supreme Court in case of Varsha Garg (supra) has observed that merely because Court comes to the conclusion that application has been filed to fill up the lacuna, the same cannot be rejected. The Supreme Court in paragraphs 28, 29, 30, 31 and 32 while dealing with the scope of Section 311 of Cr.P.C has observed as under:- 28 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.

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.

29 The first part of the st