Dismissed¶69

M/S.Om Parivahan Pvt. Ltd.,Kolkata v. State of Odisha

Orissa HC6 Apr 2026CRLMC/986/2026

Case brief

AI extract

What is this about?

Section 311 CrPC recall of witness for further cross-examination denied; belated recall application without satisfactory explanation; filling lacuna in defence impermissible; counsel's inadvertence not a ground for recall (Shiv Kumar Yadav); principles of Rajaram Prasad Yadav (2013) 14 SCC 461 and Natasha Singh (2013) 5 SCC 741 applied; N.I. Act cheque complaint I.C.C. No.550 of 2018, Cuttack; CRLMC No.986 of 2026, High Court of Orissa at Cuttack, Dr. Sanjeeb K Panigrahi, dismissed; impugned order dated 12.01.2026 upheld; expeditious trial direction; petitioners claimed refund of cheque amount and questioned role of Pawan Kumar Pachisia, Chartered Accountant.

What did the court decide?

None to the Petitioners; the impugned order dated 12.01.2026 was upheld and the trial court was directed to conclude the trial expeditiously. ¶69

M/S.Om Parivahan Pvt. Ltd.,Kolkata Vs State of Odisha — Cheque Dishonour | Orissa HC (2026)

What the court decided

AI extract

Outcome

None to the Petitioners; the impugned order dated 12.01.2026 was upheld and the trial court was directed to conclude the trial expeditiously.

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Issue for consideration

Whether the order dated 12.01.2026 of the J.M.F.C. (Cognizance Taking-III), Cuttack rejecting the Petitioners' application under Section 311 Cr.P.C. for recall of C.W.1 for further cross-examination is liable to be quashed. +1 more

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Court's answer

No illegality, infirmity or perversity was found in the impugned order of the trial court; it does not warrant interference by the High Court.

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Ratio / Principle

The witness sought to be recalled had already been examined and cross-examined at considerable length; the recall application was filed at a belated stage and no satisfactory explanation was furnished for the failure to put the alleged questions at the appropriate stage of the trial.

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Key takeaways

The application did not disclose any material or circumstance essential for a just and proper adjudication and was a clear attempt to fill up lacunae in the defence, which is impermissible in law.ratio¶67
The power of recall cannot be exercised to enable a party to improve upon its case or to rectify omissions arising from negligence or tactical decisions; allowing such an application would result in unnecessary protraction of the trial, contrary to the principles of expeditious justice.ratio¶67
The CRLMC being devoid of merits, it is dismissed.

Detailed headnote1 paragraphs

Section 311 Cr.P.C. — Recall of witness for further cross-examination — Petitioners in a N.I. Act complaint (I.C.C. Case No.550 of 2018, posted for arguments) sought recall of C.W.1 on the plea that their conducting counsel had inadvertently failed to put material questions concerning one Pawan Kumar Pachisia; the J.M.F.C. rejected the application as a delaying tactic. Held: the witness had already been cross-examined at considerable length; the belated application carried no satisfactory explanation, disclosed no material essential to a just decision, and was an impermissible attempt to fill up lacunae in the defence — recall cannot be used to improve a case or rectify omissions born of negligence or tactical choice, as it would protract the trial. Reliance placed on Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461; State (NCT of Delhi) v. Shiv Kumar Yadav & Anr, (2016) 2 SCC 402; and Natasha Singh v. CBI, (2013) 5 SCC 741. No illegality, infirmity or perversity found in the impugned order; CRLMC dismissed and order dated 12.01.2026 upheld; trial court directed to conclude the trial expeditiously.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.986 of 2026

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M/s. Om Parivahan Pvt. Ltd., West Bengal & Anr. …. Petitioner(s)

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Mr. Sushanta Harichandan, Adv.

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-versus-

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…. State of Odisha & Anr. Opposite Party(s)

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Mr. Tej Kumar, ASC Mr. Haripad Mohanty, Adv. (for O.P. No.2)

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CORAM:

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HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI

Order No.

01.

ORDER

06.04.2026

1. This matter is taken up through hybrid arrangement.

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2. By filing the present CRLMC, the Petitioners have prayed for quashing the order dated 12.01.2026 passed by the learned J.M.F.C. (Cognizance Taking-III), Cuttack in I.C.C. Case No.550 of 2018, whereby the learned trial Court rejected the petition filed under Section 311 Cr.P.C. by the Petitioners seeking recall of C.W.1 for further cross-examination.

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3. Heard.

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Signature Not Verified

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Digitally SignedSigned by: SIPUN BEHERADesignation: SeniorStenographerReason: AuthenticationLocation: HIGH COURT OFORISSA, CUTTACKDate: 08-Apr-2026 18:59:32

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4. Learned counsel for the Petitioners submits that while crossexamining C.W.1, the conducting counsel inadvertently failed to put certain material questions relating to the role of one Pawan Kumar Pachisia, a Chartered Accountant, at whose persuasion Opposite Party No.2 agreed to extend the loan to the Petitioner’s company. It is

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further submitted that questions regarding his relationship with the Petitioner’s company as well as with Opposite Party No.2 and his company, the financial status of Opposite Party No.2, the monetary transactions and compliance with the provisions of the N.I. Act could not be put. It is contended that denial of an opportunity to further cross-examine C.W.1 would cause serious prejudice to the Petitioners.

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5. Learned counsel for the Petitioners further contends that the learned Court below ought to have granted another opportunity to further cross-examine C.W.1, particularly when the Petitioners have already refunded the cheque amount to Opposite Party No.2. However, the learned trial Court, without proper application of judicial mind, mechanically rejected the application. Hence, the impugned order is liable to be quashed.

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6. It is further contended that C.W.1, being the Managing Director of the complainant company, has deposed on behalf of the company and exhibited all relevant documents before the learned trial Court. Since the fate of the case largely depends upon his evidence, and material questions could not be put during cross-examination, the Petitioners have been deprived of an effective opportunity to defend their case. Therefore, the learned Court below ought to have allowed the application for recalling the witness for further cross-examination.

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7. Learned counsel for the Petitioners also submits that the finding of the learned trial Court that the petition was filed to fill up lacunae is erroneous. The proposed questions are essential for the just decision

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of the case and denial of such opportunity would cause serious prejudice to the Petitioners.

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8. It is further contended that the law is well settled that a witness may be recalled for further cross-examination at any stage of the trial if it is necessary for a just decision of the case. Therefore, the learned Court below ought not to have rejected the petition filed under Section 311 Cr.P.C.

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9. Learned counsel for Opposite Party No.2 vehemently opposes the application, submitting that the witness has already been fully crossexamined and that the present application has been filed at a belated stage with a view to protract the trial.

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10. Heard the learned counsel for the respective parties and perused the available materials on record.

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11. On perusal of the impugned order, the learned trial Court held that the case arises out of proceedings under the N.I. Act and that there is a legislative mandate requiring the Court to endeavour to dispose of such cases within six months from the date of institution. The present case pertains to the year 2018 and is presently posted for arguments. Ample opportunity has already been afforded to the Petitioners to cross-examine C.W.1. The learned Trial Court further held that, with a view to delaying the proceedings and protracting the trial, the Petitioners filed an application under Section 311 of the Cr.P.C. seeking recall of C.W.1. Accordingly, the learned Trial Court rejected the said application under Section 311 Cr.P.C. vide order dated 12.01.2026.

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12. The scope of section 311 of the Cr.P.C. is well settled. In Rajaram Prasad Yadav v. State of Bihar¹ , the Supreme Court has held that:

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“ 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

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17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?’

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17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

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17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and reexamine any such person.

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17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

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1 (2013) 14 SCC 461

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17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

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17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

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17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

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17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

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17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

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17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

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17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

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17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

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18. Keeping the above principles in mind, when we examine the case on hand, at the very outset, it will have to be stated that the High Court, while passing the impugned order [Suresh Prasad v. State of Bihar, Criminal Misc. Petition No. 12454 of 2010, order dated 9-12-2010 (Pat)] has completely ignored the principal objectives with which the provision under Section 311 CrPC has been brought into the statute book. As rightly argued by the learned counsel for the appellant, at the foremost when the trial was very much in the grip of the trial court, which had every opportunity to hear the appellant, the State, as well as the second respondent, had not even bothered to verify whether the appellant, who was facing criminal trial was impleaded as a party to the proceedings in the High Court. A perusal of the order discloses that the High Court appears to have passed

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orders on the very first hearing date, unmindful of the consequences involved. The order does not reflect any of the issues dealt with by the learned Sessions Judge, while rejecting the application of the respondents in seeking to re-examine PW 9, the second respondent herein. Though orders could have been passed in this appeal by remitting the matter back to the High Court, having regard to the time factor and since the entire material for passing final orders are available on record and since all parties were before us, the correctness of the order of the Sessions Judge dated 18-11-2009, can be examined and final orders can be passed one way or the other in the present criminal appeal itself ”.

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13. In the case of State (NCT of Delhi) v. Shiv Kumar Yadav & Anr .² , it is observed that:

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“ 15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the

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2 (2016) 2 SCC 402

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present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face crossexamination.

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16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the authorities concerned including the Law Commission and the Bar Council of India ”.

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14. In Natasha Singh v. Central Bureau of Investigation (State)³ , the Supreme Court has held as follows:

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“15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or

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3 (2013) 5 SCC 741

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to cause serious prejudiceto the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case .”

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15. In the present case, it is not in dispute that the witness sought to be recalled has already been examined and cross-examined at considerable length. The application for recall has been filed at a belated stage and no satisfactory explanation has been furnished for the failure to put the alleged questions at the appropriate stage during the trial. The application does not disclose any material or circumstance which is essential for a just and proper adjudication of

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the case. On the contrary, it appears to be a clear attempt to fill up lacunae in the defence, which is impermissible in law. It is well settled that the power of recall cannot be exercised to enable a party to improve upon its case or to rectify omissions arising from negligence or tactical decisions. Allowing such an application would inevitably result in unnecessary protraction of the trial and would be contrary to the principles of expeditious justice.

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16. In view of the settled legal position and having regard to the facts and circumstances of the present case, no illegality, infirmity, or perversity can be found in the impugned order passed by the learned trial Court. The same, therefore, does not warrant any interference by this Court.

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17. The CRLMC is devoid of merits and is accordingly, dismissed.

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18. The impugned order dated 12.01.2026 passed by the learned J.M.F.C.-III (Cog. Taking), Cuttack is upheld.

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19. Pending application (s), if any, shall stand disposed of.

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20. The learned trial Court shall make every endeavour to conclude the trial as expeditiously as possible in accordance with law.

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( Dr. Sanjeeb K Panigrahi)

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Judge