JUDGMENT 1. - The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 30.08.2012 passed by the Court of Additional Chief Judicial Magistrate (Economic Offence) Jodhpur Metropolitan in criminal case no. 543/2010 State v. Amit Srivastava & Ors. whereby the Court below had dismissed the application filed by the petitioner complainant under Section 311 Cr.P.C., be set aside. 2. Briefly stated on basis of the complaint lodged by the petitioner, a FIR was registered and a charge sheet was filed along with the list of witnesses. Petitioner-complainant along with Lalit Mohan Gopalia and Sandeep Jaisawal were cited as witnesses. 3. A perusal of the impugned order reveal that the charges were framed against the accused-respondent on 17.01.2009. Due to non appearance of the witnesses, Court was constrained to issue bailable warrants against Deepak Gopalia on 09.06.2009. In spite of execution of bailable warrants, Deepak Gopalia had not appeared in the Court. Similarly bailable warrants were issued against witness Lalit Mohan Gopalia on 10.06.2009. The service of warrant was effected upon the son of the Lalit Mohan Gopalia, again summons were issued and service was affected upon the employee of Lalit Mohan Gopalia. 4. In the impugned order, the Court has given details of efforts made to procure the presence of the witnesses. The Court was fed up due to non-appearance of the witnesses and having no other option ultimately closed the evidence. It is admitted fact that order of closing evidence has been made subject matter of challenge in a connected S.B. criminal misc.petition no. 1302/2012 which is also pending for adjudication today. 5. Be that as it may it is also admitted fact that during the pendency of the present petition, the statement of the accused have been recorded under Section 313 Cr.P.C. They have also examined five witnesses in defence and have concluded defence evidence, now case is fixed for final arguments and decision. 6. Counsel for the petitioner has relied upon Godrej Pacific Tech. Limited v. Computer Joint India Limited (2009) 2 Supreme Court Cases (Cri)455 to submit that while exercising powers under Section 311 Cr.p.C. where it appears to the Court that it is essential for the just decision of the case, an opportunity can be granted to the witness, for recording their evidence. Limited v. Computer Joint India Limited (2009) 2 Supreme Court Cases (Cri)455 to submit that while exercising powers under Section 311 Cr.p.C. where it appears to the Court that it is essential for the just decision of the case, an opportunity can be granted to the witness, for recording their evidence. A perusal of the judgment reveal that orders in that case were passed on the facts of that case. In the present case for three years court had made numerous efforts to secure the presence of the witnesses, they intentionally avoided their appearance, therefore on facts judgment cited by counsel for the petitioner is not applicable. 7. Petitioner has further relied upon Ranjan Dwivedi v. C.B.I. through the Director General 2012 CRI L.J. 4206 to submit that merely because accused are entitled to speedy trial the rights of the complainant should not be curtailed. In the present case, it is not a question of speedy trial but the conduct of the witnesses. 8. Further reliance has been placed on Devi Lal v. State of Rajasthan 2011 (Raj.) CANDID 305 to say that in one case, even the appellate Court in appeal had permitted recording of evidence of witnesses. A perusal of the judgment cited Devi Lal's case(supra), reveal that the Court considering the facts of that case that it was a case of three murder and witnesses were withheld from court had ordered recording of evidence. The judgment cited is not attracted on the facts of the present case as no premium can be granted to the petitioner, who for wrong on their part, had not appeared before the Court below and had permitted the trial to proceed and same is now at fag end. 9. Normally, this Court would have granted one opportunity to the petitioner complainant to step up into the witness box along with the witnesses. Considering the fact that Court was making continuous efforts from three years to secure presence of the petitioner, in spite of various efforts made and having knowledge of the pendency of the proceedings, witnesses had not appeared in the Court. Thus, this Court can safely infer that the complainant and his witnesses were not diligent enough to cause appearance in the Court rather they were avoiding their appearance in the Court. Thus, this Court can safely infer that the complainant and his witnesses were not diligent enough to cause appearance in the Court rather they were avoiding their appearance in the Court. The very fact that now statement of accused under Section 313 Cr.P.C. have been recorded and they have concluded their defence evidence, if at this stage one opportunity is allowed to the witnesses it will seriously prejudice the case of accused and their defence. The accused have taken a definite stand in their statement under Section 313 Cr.P.C. They have also unfolded their defence by leading defence evidence. Strategy of the defence is now wide open, if now opportunity is granted to the witnesses, it will not only amount to filling up the lacuna but shall also destroy the gains made by the defence. The Court, has to ensure free and fair trial. Allowing the request of the petitioner at this moment shall be foul to the fair trial therefore neither the balance of convenience nor equity nor fairness are in the favour of the petitioner, to afford them opportunity to step up into the witness box, therefore, the present application under Section 311 Cr.P.C. has been rightly dismissed by the trial Court. Thus this misc. petition is dismissed upholding the order of the Court below. In view of the above, the misc. petition for stay also stand dismissed.Petition dismissed. *******