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2011 DIGILAW 1294 (MP)

Ashok v. Alok

2011-11-16

S.R.WAGHMARE

body2011
ORDER 1. By this criminal Revision filed under section 397 read with 401 of the CrPC the petitioner Ashok has challenged the order dated 9.9.2011 passed in criminal case No. 153/2009 by the Judicial Magistrate Class-I, Dewas allowing the application of the non-applicant/respondent Alok under section 311 of the CrPC. 2. Counsel for the petitioner has vehemently urged the fact the trial Court had erred in allowing the application under section 311 of the CrPC for recalling the complainant for further questioning at the fag end of the trial. He urged that-re-opening of trial cannot be permitted and the complainant cannot be recalled for cross-examination. Counsel for the petitioner stated that on the basis 'of principles of natural justice proper hearing has already been granted to the accused defendant to defend himself. Whereas counsel further stated that on several occasions i.e. on 20.5.2011, 21.6.2011,12.7.2011,21.7.2011 & 3.8.2011 opportunities were granted to the defendant to defend himself and the defendant himself closed the defence on 4.5.2011 and at the time of final hearing to produce such an application was not bonafide and was meant to protact the proceedings. Counsel has placed reliance in the matter of Rajkumar v. Smt. Gunmala : 2007 (1) MPLJ579 and Mubarique Shah v. State of M.P 2001 (II) MPWN 177 whereby this Court had held that filing of such application at the fag end of the trial i.e. calling reopening of complainant for further questioning at fag end of the trial cannot be permitted and complainant cannot be recalled for cross-examination. The application under section 311 of the CrPC was dismissed holding that the unbridled power of Court to re-summon witnesses has to be exercised on sound judicial discretion it cannot be allowed to fill up lacuna. Hence, counsel has prayed for setting aside the impugned order. 3. The application under section 311 of the CrPC was dismissed holding that the unbridled power of Court to re-summon witnesses has to be exercised on sound judicial discretion it cannot be allowed to fill up lacuna. Hence, counsel has prayed for setting aside the impugned order. 3. On perusing the impugned order as well as the submissions put forth by the counsel for the petitioner, although I find that there is some substance in the point she has agitated; I find that apex Court in the matter of T.Nagappa v. YR.Muralidhar: AIR 2008 SC 2010 under similar circumstances held that when a contention has been raised that the complainant has misused the cheque and in a case where a presumption can be raised under section 139 of Negotiable Instruments Act an opportunity must be granted to the accused for adducing evidence in rebuttal thereof and as the law places the burden on the accused he must be given an opportunity to discharge the same. The petitioner cannot be convicted without an opportunity being given to him to present his evidence and fit is denied to him there is no fair trial. Fair trial includes fair and proper opportunities allowed by law to prove his innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial off air trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the Courts should be zealous in seeing that there is no breach of them. 4. In this view of the matter, I find that in the said case although the application was for examining a handwriting expert the accused is entitled to free and fair hearing of the trial and one opportunity must be given to him for rebuttal under section 139 of the Negotiable Instruments Act. Hence, I do not find any infirmity in the order passed by the lower Court and it is upheld. It is needless to say that the accused be granted only a single opportunity to cross-examine the complainant in the interest of justice between the parties. However, before with parting the order the trial Court is directed to complete the trial within a period of two months from today. 5. With these directions, the revision petition is partly allowed to the extent herein above indicated. Ms. Nisha Tanwar for petitioner.