M/S Kurian Energiekanri India Pvt ... vs State Of Nct Of Delhi And Ors.
2022 Latest Caselaw 3111 Del

                                               Neutral Citation No. 2022/DHC/005106




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                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                          Reserved on:18.11.2022
                                                                     Pronounced on:24.11.2022

                          +      CRL.M.C. 3842/2022 & CRL.M.A. 16051/2022
                                 M/S KURIAN ENERGIEKANRI INDIA
                                 PVT LTD AND ANR.                    ..... Petitioners
                                              Through: Mr.Niranjan Sahu, Advocate

                                                       versus

                                 STATE OF NCT OF DELHI AND ORS.                       ..... Respondents
                                                       Through:     Mr. Satish Kumar, APP for the
                                                                    State
                                                                    Mr. Abhijit Mittal, Advocate
                                                                    for R-2
                          CORAM:
                          HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

                                                       JUDGMENT

SWARANA KANTA SHARMA, J.

1. The present petition has been filed by the petitioners under Section 482 of Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") against the impugned order dated 09.10.2021 passed by the learned Metropolitan Magistrate, South District, Saket Courts, New Delhi in C.C. No. 10332/17 titled "M/S NH Consulting Private Limited versus Kurian EnergieKanri (India) Private and Others".

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

2. The impugned order passed by the learned Metropolitan Magistrate rejected the application of the petitioner /accused no. 2 under Section 311 Cr.P.C. for recalling witness i.e., complainant PW- 1 for further cross examination.

3. Perusal of the material on record shows that on 11.10.2020, an application under section 311 of Cr.P.C. was moved by petitioner /accused no. 2 for recalling the complainant for cross-examination before the learned MM. It further shows that vide order dated 17.11.2018, the learned MM had allowed accused to cross examine the complainant and the cross-examination was conducted on 15.05.2019.

4. It is contended by learned counsel for the petitioners that cross- examination is to be conducted again as no pertinent questions with regard to expenditure incurred by complainant were put to the complainant/ respondent no. 2 for which the alleged cheques were issued for recovering of existing liability. The Complainant was the sole witness in the present case and questions were not asked in detail by previous counsel during the cross-examination. It was further stated that there is a strong defence which petitioner had contended at the time of framing of notice under Section 251 Cr.P.C. as well as in his statement under Section 313 Cr.P.C. and in order to bring the same on record, further cross-examination of the complainant is essential in the present case.

5. Learned counsel for the respondents submits that at this stage, no objection can be taken by petitioner pertaining to weak defence taken by the previous counsel or with regard to the manner of cross-

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

examination as the same was conducted after the statement of petitioner /accused no. 2 under Section 313 Cr.P.C. was recorded. It is further stated that throughout the proceedings, the petitioners had deliberately remained silent and delayed the proceedings. It is further stated by the respondent that it is generally presumed that the counsel appointed by the choice of litigant is competent in conducting the case and repeated recall of witness at every stage will delay the conduct of trial.

6. Vide impugned order dated 09.10.2021, while dismissing the said application filed by the petitioner /accused no. 2, it was stated by learned Metropolitan Magistrate that power under the said provision shall not be exercised for filling in the lacunas in the case at hand. The findings clearly state that due opportunity was given to the learned counsel for the petitioner / accused no. 2. The same are reproduced hereinunder which reads as:-

"Application u/s 311 CrPC filed on behalf of accused no. 2 on the ground that previous counsel did not conduct cross examination properly and the questions regarding the defence taken by accused in reply to notice u/s 251 CrPC were not put to complainant witness.

This court is of the considered view that power u/s 311 CrPC shall not be exercised for filling lacuna in the case of parties and accordingly, the present application is dismissed.

Till date steps for leading DE have not been taken by any of the accused persons. Let the same be done before NDOH by way of last opportunity with advance copy to other side against acknowledgement.

Put up for DE on 06.01.2022."

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

7. Section 311 Cr.P.C. which reads as under:-

"311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Court, summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

8. Section 311 of Cr.PC. empowers the Court to call any person as witness at any stage of inquiry, trial or other proceeding in order to reach to the just decision of the case. The powers conferred under Section 311 Cr.P.C. are wide and thus need to be exercised judiciously with extra care and caution for arriving at just decision of the case. Further, it must be kept in mind that if exercised in arbitrary manner, it will cause undue delay in trial and hardship to the opposite party.

9. The Hon'ble Apex Court in the case of Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 while dismissing the appeal for re- examination of witness relied on the State (NCT of Delhi) v. Shiv Kumar Yadav and Anr., (2016) 2 SCC 402, wherein it was observed that:-

"... Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

10. Further, it was held by Hon'ble Supreme Court in Shiv Kumar (Supra) that mere incompetence or change of counsel cannot be ground for recall of witness under Section 311 Cr.P.C. and that it is not only matter of delay but also of harassment for witnesses to be recalled which could not be justified. The power given is to be exercised cautiously. In the present case, the cross examination conducted by counsel on behalf of petitioner no. 2 was extensive and thus needs no reconsideration.

11. The contents of case of Zahira Habibullah Sheikh and Anr. v. State of Gujarat &Ors. (2004) 4 SCC 158, as relied by learned counsel for the petitioner do not apply to the facts of the present case and it was observed by Hon'ble Apex Court that Courts while exercising the power under section 311 Cr.P.C.:-

"It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

12. Unquestionably, the facts of the present case reveal that due opportunity was granted to the counsel for the petitioner to cross- examine the complainant and thereafter cross-examination was duly conducted on 15.05.2019 as per law. The cross examination of complainant was conducted comprehensively by the counsel for petitioner/ accused no. 2 as per order dated 15.05. 2019 passed by learned Metropolitan Magistrate and thus it would be against the mandate of law to recall him merely on the ground of change of counsel.

13. This is case wherein the petitioner has failed to show as to how cross-examination conducted by previous counsel was not conducted properly by not asking relevant questions to the complainant. The alleged lack of competence of the previous counsel cannot be the sole ground to reopen the examination of complainant by way of an application under Section 311 Cr.P.C. In case, such a view is taken, it will be contrary to the settled principle of law in this regard by the Apex Court as discussed in the preceding para laid down in the case of State (NCT of Delhi) Vs Shiv Kumar Yadav and Another (2016) 2 SCC 402 in this regard, it was specifically observed in para 15 of the judgment "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

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

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."

14. Therefore, to take a view that an application under Section 311 Cr.P.C. can be allowed in routine manner on the plea of change of a counsel after discharging the counsel from the case and taking plea that his performance was not to the liking of the concerned party, will be unreasonable. The present case reveals that the petitioner was assisted by a counsel of his choice and was professionally assisted by him when he extensively cross-examined the witness. In case application is allowed under Section 311 Cr.P.C. on such a ground when no reason has been brought forth by the petitioner as to how the cross-examination conducted was either prejudicial to him or would result in miscarriage of justice, the recall of the witness cannot be allowed.

15. The other contention of the learned counsel that he had strong defence which he had taken even at the time of framing of notice but relevant questions were not put to the witness despite lengthy cross- examination could not be substantiated by the learned counsel either during arguments before the Court or in his petition. In any case, the petitioner has an opportunity to lead defence evidence when he can produce his witnesses in his defence. After perusing the impugned order as well as the material placed before this Court and in the light of the facts and circumstances of the present case, this Court finds that no substantial reason has been shown to recall the complainant

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29 Neutral Citation No. 2022/DHC/005106

by the petitioner and the change of counsel cannot be a sufficient reason to invoke Section 311 of Cr.P.C. The complainant was examined and cross examined by the counsel of the choice of petitioner/ accused no. 2 and the same was conducted in detail.

16. For the reasons stated hereinabove, this Court is not inclined to interfere with the impugned order dated 09.10.2021 of the learned Trial Court as there is no infirmity in the said order.

17. The petition being devoid of merits stands accordingly dismissed.

SWARANA KANTA SHARMA, J

NOVEMBER 24, 2022/ns

Digitally Signed By:ZEENAT PRAVEEN Signing Date:24.11.2022 19:28:29