Advocates:
['Rakesh Lodhi', '', 'RAJKUMAR JAISWAL', 'RANJANA JAISWAL']

Page No.1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CR.M.P. No. 10

28

of 2015

Smt. Nilima Choudhary, W/o Sanjay Choudhary, Aged About 42 Years,

R/o Janta Quarter Gudhiyari Raipur, Tahsil & District – Raipur,

Chhattisgarh

---- Petitioner

Versus

Smt. Padma Naidu, W/o Late Sangam Naidu, Aged About 35 Years,

R/o Janta Quarter No. 843, Near Shiv Mandir Gudhiyari Raipur, Tahsil

& District Raipur, Chhattisgarh

---- Respondent

For Petitioner

:

Smt. Ranjna Jaiswal, Advocate

Hon'ble Shri Justice Goutam Bhaduri

Order On Board

22

/1

2 /2015

1.

This petition is against the order dated 23.09.2015, passed by the

learned Fifth Additional Sessions Judge, Raipur, in Criminal Revision

No.128/2015 whereby the order dated 24.03.2015 passed by the

Judicial Magistrate First Class, Raipur, in case of Smt. Padma v. Smt.

Nilima Choudhary was affirmed. The order pertains to rejection of

application under Section 311 of Cr.P.C.

2.

Learned counsel for the applicant submits that a case under Section

138 of Negotiable Instrument Act was pending before the Court of

Judicial Magistrate First Class wherein the applicant had filed an

application under Section 311 of Cr.P.C. to recall the complainant. It is

contended that after closure of the evidence of the complainant, it was

felt necessary at the time of final argument to re-examine the witness.

It is contended that by further evidence it could have been shown there

was no liability is existing for the alleged cheque for which the

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complaint was filed.

3.

Perusal of the order would show the facts that Padma, the

Respondent, had filed a complaint under Section 138 of Negotiable

Instrument Act on 20.11.2013, which was registered on 07.01.2014.

Subsequently, on 30.01.2015 the complainant was examined and

cross-examination was completed on 05.02.2015. Thereafter, the case

was fixed for statement of the accused on 13.02.2015 and the

statement was recorded. Subsequently, the case was listed for

11.03.2015 and after hearing the arguments, the case was fixed for

orders on 19.03.2015 and at that time, one application was filed under

Section 311 of Cr.P.C. to recall the complainant on the ground that

certain question could not be asked, which are necessary to rebut the

presumption and liability.

4.

The principle of like nature, their Lordship of the Supreme Court in a

recent judgment reported in AIR 2015 SC 3501 in case of AG v. Shiv

Kumar Yadav & Anr. at para 29 has laid down the principles, which is

reproduced herein below:

“29. We may now sum up our reasons for

disapproving the view of the High Court in the

present case :

(i)

The trial court and the High Court held that the

accused had appointed counsel of his choice. He

was facing trial in other cases also. The earlier

counsel were given due opportunity and had duly

conducted cross-examination. They were under no

handicap;

(ii)

No finding could be recorded that the counsel

appointed by the accused were incompetent

particularly at back of such counsel;

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(iii)

Expeditious trial in a heinous offence as is

alleged in the present case is in the interests of

justice;

(iv)

The trial Court as well as the High Court

rejected the reasons for recall of the witnesses;

(v)

The Court has to keep in mind not only the

need for giving fair opportunity to the accused but

also the need for ensuring that the victim of the crime

is not unduly harassed;

(vi)

Mere fact that the accused was in custody and

that he will suffer by the delay could be no

consideration for allowing recall of witnesses,

particularly at the fag end of the trial;

(vii)

Mere change of counsel cannot be ground to

recall the witnesses;

(viii)

There is no basis for holding that any

prejudice will be caused to the accused unless the

witnesses are recalled;

(ix)

The High Court has not rejected the reasons

given by the trial court nor