Madhya Pradesh High Court
Sanjay Dubey vs Omprakash on 8 August, 2024
1 MCRC-10490-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 8 th OF AUGUST, 2024
MISC. CRIMINAL CASE No. 10490 of 2023
SANJAY DUBEY
Versus
OMPRAKASH
Appearance:
Ms. Megha Jain - Advocate for applicant.
ORDER
The present petition is filed under Section 482 of Code of Criminal
Procedure, 1973 challenging the order dated 26.07.2022, whereby the
learned JMFC has allowed the application filed under Section 311 of Cr.P.C.
by recalling the present petitioner who is accused for cross-examination.
02. The respondent filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 in the year 2012 on account of return of
the cheque dated 17.11.2011 of Rs.50,000/- unpaid. At the stage of final
argument of the trial, the respondent complainant filed an application under
Section 311 of Cr.P.C. to recall the accused for further cross-examination.
The application was opposed by the petitioner on the ground that the
complaint is pending since 2012. The evidence of both the parties have been
closed on 18.02.2017 and since then the trial is pending for delivery of
judgment and the complainant is trying to linger on the proceedings. The
provisions of Section 311 of Cr.P.C. cannot be used for fulfilling the lacunae.
2 MCRC-10490-2023
The learned trial Court vide impugned order dated 26.07.2022 has allowed
the application with the cost hence, this petition before this Court.
03. The complainant - Omprakash S/o Raghunandan Singh had filed
M.Cr.C. No.28137/2019 challenging the order dated 03.05.2019 whereby
application filed under Section 311 of Cr.P.C. for cross-examination of the
accused was rejected, at that time also the trial was fixed for final argument,
therefore, once the Court had already rejected an application filed under
Section 311 of Cr.P.C. calling the accused persons for re-examination then
without setting aside the aforesaid order, the fresh order ought to have been
passed that too after the lapse of 3 years.
04. The applicant - Sanjay Dubey had also filed M.Cr.C.
No.17117/2023 challenging the order dated 26.07.2022, whereby application
filed under Section 91 of Cr.P.C. by which direction was given to the Police
Station - Lasudiya about the information of the accused account in Axis
Bank. In the present case, the accused / applicant Sanjay Dubey came up
with the defence that he has been wrongly impleaded in this case as
Proprietor of the firm, he is neither proprietor nor having authority to sign the
cheque on behalf of the firm. The Proprietor of the Firm is Rajkumar Dubey.
It appears from the aforesaid proceedings that the complainant is trying to
delay the proceedings, the evidence of both the parties have already been
completed in 2017 and till date no efforts were made for evicting collecting
the information account to the defence taken by the accused.
05. The parties should be vigilant about their rights during the trial,
once the evidence has been completed then the power under Section 311 of
3 MCRC-10490-2023
Cr.P.C. must be exercised with caution and circumstances of the case. The
witness should not be recalled in a casual manner as held by the Apex Court
in case of Ratanlal V/s Prahlad Jat and others reported in (2017) 9 Supreme
Court Cases 340. In the present case also, the learned Magistrate has
dismissed the application under Section 311 of Cr.P.C. From day one, the
complainant was aware about the defence taken by the complainant's
counsel, therefore, now at this stage, the recalling is not justified.
06. In view of the above, order dated 26.07.2022 is hereby set aside
and M.Cr.C. stands dismissed.
Certified copy as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
Tej
