Punjab-Haryana High Court
Arvind Jain vs Akshay Jain on 6 December, 2022
(1) CRM-M-48646 of 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-48646 of 2022
Date of Decision:- 06.12.2022
Arvind Jain
....Petitioner
Vs.
Akshay Jain
....Respondent
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
Present:- Mr. Vipul Babuta, Advocate
for the petitioner.
KARAMJIT SINGH, J.
Petitioner has filed the present petition against the order
dated 03.12.2021 passed by the Court of Judicial Magistrate 1st Class,
Ludhiana, vide which the application moved by respondent/
complainant under Section 311 Cr.P.C for recalling him
(complainant) for his cross-examination was allowed in a criminal
complaint No.COMA/520/2018, dated 11.01.2018 titled as 'Akshay
Jain Vs. Arvind Jain', filed under Section 138 of Negotiable
Instruments Act.
The counsel for the petitioner/accused has inter alia
contended that the trial Court invoked the provisions of Section 311
Cr.P.C. at the fag end of the trial. The counsel for the petitioner/
accused has further submitted that after hearing the arguments, the
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(2) CRM-M-48646 of 2022
case was fixed for 20.02.2020 for passing of final judgment by the
trial Court and in the meantime, the respondent/complainant filed
application Anexure P-2, under Section 311 CrPC with prayer to
recall the complainant in order to complete his cross examination.
The counsel for the petitioner submits that the aforesaid application
was moved by the respondent at the belated stage when the trial was
at its last legs and as such, there was no reason for the trial Court to
allow the said application. The counsel for the petitioner has further
submitted that in view of the matter, the impugned order dated
3.12.2021 (Annexure P-1) deserves to be set aside being illegal and
perverse.
The counsel for the petitioner has further submitted that
the petitioner filed revision petition against the impugned order but
the same was dismissed by the revisional Court for want of
jurisdiction vide order, Annexure P-4, dated 15.07.2022 and
resultantly, the present petition has been filed under Section 482
CrPC to challenge the impugned order.
I have considered the submissions made by the counsel
for the petitioner.
Section 311 Cr.PC 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 Code, 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
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(3) CRM-M-48646 of 2022
evidence appears to it to be essential to the just decision of
the case".
The Trial Court can invoke its power under Section 311
Cr.P.C to find out the truth and render a just decision. The object
underlying Section 311 CrPC is that there may not be failure of
justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of
witnesses examined from either side. Further it is settled law that the
wide discretionary power provided under Section 311 CrPC should
be exercised judiciously and not arbitrarily. 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.
Now adverting to the facts of the present case, it appears
that the trial Court heard the final arguments and the case was posted
for 20.02.2020 for orders. In the meantime, respondent/ complainant
filed an application dated 14.02.2020 under Section 311 Cr.P.C. to
recall the complainant for his cross examination, as by that time the
complainant was only partly examined and the said application was
allowed by the trial Court vide impugned order dated 03.12.2021
(Annexure P-1) and the revision petition filed against the said order
was also dismissed by the concerned revisional Court, for want of
jurisdiction being filed against an interlocutory order.
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(4) CRM-M-48646 of 2022
This Court is of the view that the testimony of the
respondent/ complainant is essential for just decision of the criminal
complaint Akshay Jain Vs. Arvind Jain & Anr. under Section 138 N.I.
Act, which is pending in the Court of learned Judicial Magistrate Ist
Class, Ludhiana. Admittedly, the incomplete testimony of the
complainant could not be read into evidence by the trial Court. The
application moved under Section 311 Cr.P.C. cannot be declined just
on the ground that the same was moved at the last stage of the trial.
The trial Court rightly allowed the application filed under Section
311 Cr.P.C. to render a just decision after taking into consideration
the fact that there was over sight on the part of the Court/complainant
that the cross-examination of the complainant which was deferred on
the request of the defence counsel, was thereafter not concluded and
remained inconclusive and said evidence is essential to the just
decision of the case.
Consequently, the present petition is hereby dismissed
being devoid of merits.
Copy of this order be sent to the Trial Court for
information and direction to proceed further with the trial and to
conclude the same expeditiously in accordance with law.
( KARAMJIT SINGH)
06.12.2022 JUDGE
P. Chawla
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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