Ravinder Kumar Vs Jitin Neol

The present petition has b een filed under Section 482 of Cr.P.C., 1 973 seeking quashing of the o rder dated 24.02.2025 passed by learned J u dicial Magistrae Ist Class, Ab o har whereby the application filed by the p etitioner (herein), under Section 311 of Cr.P.C. of 1973, for recalling o f the complainant i.e. CW-1 Ji t in Neol (respondent herein) for the purpose o f further cross-examination has b een dismissed. 2. Learned counsel for the petitioner has iterated that the impugne d order is contrary to both law a n d the material available on rec o rd. The appl i cation of the petitioner for rec a lling the complainant (respondent herein) f o r effective cross-examination h as erroneously been dismissed by the Cour t below, which has caused s e rious prejudice to the petitio n er. Leaned c o unsel for the petitioner has further submitted that the impug n ed order is l i able to be set-aside as the Cour t below has failed to appreciate the settled p r inciples of law that certain aspects can only be elicited in cr o ssAJAY KUMAR 2025.09.05 09:18I attest to the accuracy andexaminat i on of the complainant. Accor d ing to him, the petitioner-accu s ed integrity of this document

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has categ o rically demonstrated that duri n g the course of cross-examinat i on on 30.08.2023 and 04.09.2023, the com p lainant has himself admitted that specific c ash entries in his account coul d be subjected to verification at the instance of the accused and this fact stood corroborated through the testimoni e s of CW-3 and DW-6. Accord i ng to learned counsel, despite s u ch material c oming on record, the Court bel o w has erroneously concluded that the defe n ce counsel has failed to expl a in why the complainant was n ot cross-exa m ined on the aforesaid point s and dismissed the application. Furtherm o re, the reason assigned by t he Court below is perverse a nd contrary t o the settled principles of na t ural justice as the opportunity to cross-exa m ination is a valuable right e nshrined under law. It is furt h er contende d by learned counsel that the im p ugned order is cryptic and dev o id of merit and thus, deserves to be set- a side and prays for recall of the complain a nt to conduct proper and e f fective cross-examination in the interest of justice. On the strength of a foresaid submissions, the grant of petition i n hand is entreated for. 3. Per contra , learned counsel appearing for the respondent h as opposed t he instant petition by arguing that the impugned order does n ot suffer fr o m any illegality. Learned cou n sel has iterated that the accus e d- petitione r had full opportunity to cross-e x amine the complainant-respondent on 30.08.2023 and 04.09.2023 respectiv e ly but deliberately chose not to do so. Acco r ding to learned counsel, the in s tant application is nothing but an attempt t o fill up lacunae in the defens e and to protract the proceedi n gs. Furtherm o re, the recall of the complain a nt-respondent after completion of AJAY KUMAR 2025.09.05 09:18I attest to the accuracy anddefence e vidence would cause unnecess a ry harassment and delay whic h is integrity of this document

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contrary t o the legislative intent of exp e ditious trial under the Negotiable Instrume n ts Act, 1881. Learned coun s el has further submitted that the power u n der Section 311 Cr.P.C. is to b e exercised judiciously, sparin g ly and only t o prevent failure of justice not t o afford repeated opportunities t o a negligent party. Lastly, learned counsel h as prayed that the Court below h as rightly di s missed the application in hand for recalling the complainant b y a well-reas o ned order and hence the di s missal of the instant petition is entreated for.

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I have heard learned couns e l for the rival parties and peru s ed the paper - book. 5. It would be apposite to ref e r herein to a judgment passed by this Cou r t in case titled as Karamjit Singh vs. State of Punjab and

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another: 2024 NCPHHC 24178 ; relevan t whereof reads as under:-

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“8.4 As an epilogue to the ab o ve rumination, the following princi p les emerge: (I) The broad gamut for exe r cising power by a criminal trial C o urt under Section 311 of Cr.P.C. are a s follows: (i) The prime factor for co n sidering a plea under Section 31 1 of Cr,.P.C. is as to whether such e v idence “appears to be essential to the just decision of the case.”

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(ii) Section 311 of Cr.P.C. c a n be invoked by a criminal trial C o urt even when cross-examination of a witness has earlier been foreclosed b y a Court order. Such exercise of po w er by the Court cannot be construe d as the concerned Court recalling/re v iewing its own order. (iii) Section 311 of Cr.P.C. e m powers a criminal trial Court to e ven allow further examination/cross- e xamination of a witness at instanc e of the prosecution/accused. (iv) A criminal Court is well w ithin, its judicial discretion, to sum m on any person as a witness at any stage of proceedings/trial etc. till such Court is seized of the matter.

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(v) A criminal trial Court m a y exercise power under Section 31 1 of Cr.P.C. on an application made by a party to lis or on its own volition.

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(vi) Successive application(s ) for summoning same witness for examination/re-examination is n o t debarred but such a plea deserve s to be dealt with exercising a higher d egree of circumspection. (II) No straight jacket formu l ae can be enumerated regarding m o de, manner and extent of exercise of p ower under Section 311 of Cr.P.C b y a criminal trial Court as every cas e has its own unique facts/circumstan c es. It is neither possible nor prag m atic to lay down any such exhaustive guide-lines as every case is sui g e neris in terms of factual conspectus. (III) Needless to say that ex e rcise of power under Section 31 1 of Cr.P.C. by a criminal trial Co u rt should be undertaken by accor d ing cogent and lucid reasons, in a c cordance with basic principles of our criminal jurisprudence, for such e xercise of its power.”

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Shorn of unnecessary detail s , the relevant factual matrix of the case in h a nd is that the complainant-res p ondent has instituted a compl a int against t h e petitioner-accused (herein) u n der Section 138 of the Negotiable Instrume n ts Act, 1881, allegedly, on a c count of dishonor of cheque of Rs.15,00,000/-. During the course of trial, the complainant was cr o ssexamine d on more than 10 occasion s and finally on 08.01.2024 the complain a nt closed his evidence. After that, the statement under Section 3 13 Cr.P.C. of the accused-petitioner was re c orded and the case was fixed for 06.03.20 2 4 for the defence evidence of t h e accused. Thereafter, the accus e d- petitione r examined 08 witnesses and fin a lly when the list of witnesses w as exhauste d on 17.02.2025, the accused - petitioner moved the applicat i on under Se c tion 311 of the Code seeking recalling of the complainant, w ho was exa m ined over 02 years back, on the ground that certain mate r ial aspects t he complainant was not c r oss-examined properly and an opportun i ty be granted for conducting meaningful and effective cr o ssexaminat i on of the complainant. Upon i s suance of notice, the complain a nt-

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responde n t resisted the application by c ontending that the applicatio n is frivolous in nature and has been filed just to fill up the lacuna. 7. The short question which arises for rumination before t his Court is w hether, in the factual milieu of the case in hand, it is necessary , in the intere s t of justice, to recall the compl a inant-respondent for further cr o ssexaminat i on under Section 311 Cr.P.C. 8. It is not in dispute that the c o mplainant has already been cr o ssexamine d extensively on 30.08.2023 an d 04.09.2023 respectively. In the considered opinion of this Court, the pet i tioner has adequate opportunit y at that stag e to put all relevant questions, including those pertaining to the alleged c a sh entries. No explanation is coming forward on behalf of the accused- p etitioner as to why such que s tions were not asked during the earlier cr o ss-examination of the complai n ant, despite the defense being f u lly aware o f the nature of the dispute. T h e contention raised on behalf of learned c o unsel for the petitioner that t h e facts has emerged only thro u gh the testi m ony of DW-3 and DW-6, do e s not impress this Court. In the considered opinion of this Court, the def e nce cannot be permitted to use its own wit n esses as a ground to reop e n the cross-examination of the complain a nt-respondent. The discretiona r y power under Section 311 Cr. P .C. is not to b e exercised to fill up the lacuna e in the defence case. Furtherm o re, in the c o nsidered opinion of this Cour t , the recall of witness cannot be sought a s a matter of right once an effe c tive opportunity has been granted and that the power under Section 311 Cr.P.C. must be exercised w ith circumsp e ction to prevent injustice, not to prolong the trial. T he AJAY KUMAR 2025.09.05 09:18I attest to the accuracy andcomplain a nt-respondent has already und e rgone sufficient cross-examinat i on integrity of this document

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and recal l ing him again would not only cause undue harassment but a lso result in unwarranted delay in disposal of the case in hand under the Negotiab l e Instruments Act.

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In the factual matrix of the c ase in hand, this Court is satis f ied that the a pplication moved by the accus e d-petitioner is bereft of bona f ide and afte r thought intended to delay th e proceedings. In the conside r ed opinion of this Court, the accused- p etitioner has not been able to demonstr a te that further cross-examinati o n of the complainant-respondent is essential for a just decision of the case . The instant application has b e en filed at a belated stage, seeking recall i ng of the complainant who w as examine d more than 1½ years ago and d u ring the said time the complainant was cros s -examined on more than 10 occ a sions. Although, the power un d er Section 311 Cr.P.C. is indeed wide and d iscretionary but such power m ust be exerc i sed judiciously and not in a r outine manner, especially in the absence o f any cogent justification. 10. For the foregoing reasons, t h is Court does not find any erro r in the impu g ned order passed by the Court below. In the considered opin i on of this C o urt, the trial Court has approp r iately dealt with the applicatio n in question b y dismissing the same.

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In view of the above ratioci n ation, it is directed as follows: (i) The impugned order dated 2 4.02.2025 passed by the Judi c ial Magistra t e Ist Class, Abohar, does not ca l l for any interference and deser v es dismissal .

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Ordered accordingly.

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(ii) Any observations made and / or submissions noted hereinab o ve shall not h ave any effect on the merits of the case and the Court below s h all proceed further, in accordance with law, without being influen c ed therefro m .

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(ii) Pending application(s), if an y , shall also stand disposed off.

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(SUMEET GOEL) JUDGE

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Septemb e r 04, 2025 Ajay

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Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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Ravinder Kumar v. Jitin Neol

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Ravinder Kumar v. Jitin Neol

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