Rajasthan High Court - Jodhpur

Rohit Goyal vs Vijay Kumar (2025:Rj-Jd:18676) on 16 April, 2025

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 1902/2025

Rohit Goyal S/o Late Shri Ratan Chand Ji, Aged About 42 Years,
R/o Opposite Uttam Plaza Market, Ward No.21, Main Bazar,
Hanumangarh Town, Distt. Hanumangarh.
                                                                    ----Petitioner
                                     Versus
Vijay Kumar S/o Shri Ram Chandra Ji, R/o Ward No.18, Geeta
Bhawan Wali Gali, Near Fort, Hanumangarh Town Tehsil And
District Hanumangarh.
                                                                  ----Respondent


For Petitioner(s)          :     Mr. J. Gehlot
For Respondent(s)          :     Mr. Lalit Kishore Sen, PP



            HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

16/04/2025

1. By way of filing the present criminal misc. petition under

Section 528 BNSS, the petitioner has prayed for the following

reliefs:-

"(i) The impugned order dated 15/01/2025 and 28/08/2024 be set aside.

(ii) The application of the petitioner under section 311 Cr.P.C., be allowed and complainant/ Respondent be called/ summoned for cross examination on the cost of petitioner.

(iii) Any other relief for which the petitioner is entitle be given."

2. Briefly stated facts of the case are that the respondent-

complainant filed a compliant under Section 138 N.I. Act stating

therein that the accused- petitioner had taken a loan of

Rs.5,00,000/- from him. The accused- petitioner handed over a

post dated cheque No.003767 for the sum of Rs.5,00,000/-

against the loan amount. However, when the cheque was

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presented in the Bank of Maharashtra, Branch- Hanumangarh

Town, the same was dishonoured with a remark 'Account Blocked'.

The complainant in that view of the matter, sent a legal notice and

later on, a complaint was registered under Section 138 of the N.I.

Act. After registration of the complaint, the respondent-

complainant was examined before the learned trial Court on

30.06.2022. The accused- petitioner after one year of his

examination before the learned trial Court moved an application

with a prayer that certain important questions could not be asked

to respondent- complainant therefore, he may be recalled for

cross-examination.

3. The learned trial Court after considering the entire aspect of

the matter and after perusing the reply filed on behalf of the

respondent-complainant, rejected the application for recalling the

complainant vide order dated 28.08.2024. The revision petition

filed by the accused- petitioner also came to be rejected vide

order dated 15.01.2025.

4. Challenging the order dated 15.01.2025 and order dated

28.08.2024 filed by the accused- petitioner under Section 311

Cr.P.C., learned counsel for the petitioner contended that though

the cheque in question belongs to a firm but the respondent-

complainant has not made the firm party in the complaint

submitted by him under Section 138 N.I. Act. Therefore, an

opportunity to ask the question that why the cheque belonging to

the firm came to be issued by the respondent-complainant, should

to be given to the accused-petitioner by allowing the application

filed under Section 311 Cr.P.C. Learned counsel submitted that the

learned trial Court committed an error in rejecting the application

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filed under Section 311 Cr.P.C. Learned counsel submitted that a

litigant cannot be made to suffer due to an inadvertent mistake on

the part of his counsel. The intention of legislation for Section 311

Cr.P.C. is that the best available evidence must be brought before

the Court to prove a fact or pointing issues. Therefore, looking to

this aspect of the matter, the learned trial Court ought to have

recorded the statements of the witness by recalling him to arrive

at a fair and just decision in the case.

5. Heard learned counsel for the petitioner. Perused the

material available on record.

6. It is not in dispute that evidence of the respondent-complaint

has been recorded and cross examination has also been done by

the accused. The application under Section 311 Cr.P.C. for

summoning the complainant again for questioning him on certain

issues has been filed after about one year of recording of his

evidence. The only ground taken for recalling the witness is that

due to inadvertence, the counsel for the accused-petitioner could

not ask questions regarding the cheque belonging to the firm or

not and as to how the same came to be issued by him.

7. A bare perusal of the application dated 10.07.2023 filed

under Section 311 Cr.P.C. would indicate that it is nowhere

mentioned as to how the recalling of witness i.e. respondent-

complainant is essential for arriving at a fair and just decision in

the case.

8. The Hon'ble Supreme Court of India in the case of "Rajaram

Prasad Yadav vs. State of Bihar & Anr." reported in AIR 2013

SC 3081 has laid down following principles while dealing with

application under section 311 Cr.P.C.:-

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'23. From a conspectus consideration of the above decisions, while dealing with an application under section 311 Cr.P.C. read along with section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) 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?

b) The exercise of the widest discretionary power under section 311 Cr.PC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) 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 re-examine any such person.

d) The exercise of power under section 311 Cr.P.C. 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.

e) 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.

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

g) 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.

h) The object of section 311 Cr.PC simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) 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.

j) Exigency of the situation. fair play and good sense should be the safe guard, 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.

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

m) 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.

n) The power under section 311 Cr.P.C. 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."

9. This Court keeping in view the aforesaid precedent law in

particular point Nos. (e), (f), (i) and (j), finds that the learned trial

Court has not committed an error in exercising its jurisdiction

under Section 311 Cr.P.C. The application dated 10.07.2023 do not

disclose any reason as to why the re-examination respondent-

complainant is essential for just decision of the case. No reason

for filing the application seeking recalling of the witness after a

delay of more than one year has been furnished. Prima facie, this

Court finds that the accused- petitioner is trying to stall the

proceedings pending against him without justifiable reasons.

10. Consequently, the present criminal misc. Petition being bereft

of any merit, is dismissed. Stay application(s), if any, also stands