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2015 DIGILAW 542 (UTT)

NARESH CHANDRA v. SHAKIL AHMAD

2015-11-24

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. Accused/petitioner has invoked inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, assailing the order dated 12.10.2015, passed by Judicial Magistrate, District Udham Singh Nagar, in Criminal Complaint Case No. 900 of 2013, Shakil Ahmad Vs. Naresh Chandra, under Section 138 of Negotiable Instruments Act. 2. Undisputedly, a complaint was filed by Shakil Ahmad, respondent, herein, under Section 138 of Negotiable Instruments Act, against the accused/petitioner, herein, which is pending disposal in the Court of Judicial Magistrate, Rudrapur, District Udham Singh Nagar; case was fixed on 22.04.2014, 12.05.2014, 09.06.2014, 26.06.2014 and 25.07.2014 for cross-examination of the complainant; however, either on one ground or another, case was adjourned on the request made by the accused and his counsel; ultimately, case was fixed for 28.08.2014; on that date too, cross-examination was not done by the counsel for the accused, therefore, learned Trial Magistrate, having no other alternative, was pleased to close the opportunity of cross-examination and was further pleased to fix 04.09.2014 for the statement of the accused under Section 313 Code of Criminal Procedure; on 04.09.2014, accused did not appear nor exemption was sought for his personal appearance, therefore, learned Magistrate was pleased to issue N.B.W against the accused; ultimately, accused did appear before the Trial Magistrate on 28.11.2014 and on his request N.B.W. was recalled; after the recording of the statement of the accused under Section 313 of Code of Criminal Procedure, five different dates were fixed in the case for the defence evidence, however, no evidence in defence was produced; on 24.02.2015, application under Section 311 of the Code of Criminal Procedure was moved by the counsel of the accused making request to the Trial Magistrate to recall the complainant CW-1 for cross-examination, which was dismissed vide order dated 12.10.2015; feeling aggrieved, accused/petitioner, herein, has knocked the doors of this Court by invoking Section 482 of Cr.P.C. 3. I have heard Mr. M.K. Ray, learned counsel appearing for the accused/petitioner. 4. Section 311 of the Code of Criminal Procedure reads as under: “311. I have heard Mr. M.K. Ray, learned counsel appearing for the accused/petitioner. 4. Section 311 of the Code of Criminal Procedure 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 evidence appears to it to be essential to the just decision of the case.” 5. The bare perusal of Section 311 of the Code of Criminal Procedure would make it clear that Section 311 is in two parts. First part of Section 311 of Code of Criminal Procedure empowers the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness at any stage of any inquiry, if Court deems that such evidence would be required for fair adjudication of the trial, while second part of Section 311 of the Code of Criminal Procedure authorises the Court to summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 6. In the present case, accused/petitioner, herein, has requested the Court below to recall the CW-1 for cross-examination. 7. Asking the Court to recall the witness for the purpose of cross-examination, the party making such request must demonstrate to the satisfaction of the Trial Court that as to why, when opportunity was granted to cross-examine the witness, he could not be cross-examined? No court, ordinarily, shall recall the witness for the purpose of cross-examination or further cross-examine merely because party wants to do so. 8. Facts of the case have already been narrated in the beginning. Despite several dates fixed by the learned Magistrate for cross-examination of the complainant, he was not cross-examined and the case was adjourned on one ground or another on the request of the counsel for the accused. 8. Facts of the case have already been narrated in the beginning. Despite several dates fixed by the learned Magistrate for cross-examination of the complainant, he was not cross-examined and the case was adjourned on one ground or another on the request of the counsel for the accused. Not only this, when right to cross–examination was closed and the case was listed for recording the statement of the accused under Section 313 of Code of Criminal Procedure, accused failed to appear before the Trial Magistrate, therefore, learned Trial Magistrate has issued N.B.W. against the accused. After recalling of the N.B.W. and recording the statement of accused under Section 313 of the Code, case was listed for five times for defence evidence. Even then application was not moved for recalling the complainant for cross-examination at the earliest stage. This application was moved at the belated stage. 9. Let me now examine, as to whether, even if, application was moved at the belated stage, there is any justification or ground for recalling the complainant for cross-examination. 10. In the application moved under Section 311 of Code of Criminal Procedure, it is stated that counsel for the accused could not cross-examine the complainant on the date fixed i.e. on 26.08.2014; neither accused nor his Advocate has committed any willful default by not cross-examining the complainant, therefore, in the interest of justice, complainant may be recalled for the purpose of cross-examination. On the face of it, contents of the application moved under Section 311 of the Code, are ornamental and general in nature. It has not been made clear, as to why, counsel of the accused could not cross-examine the complainant despite fixing five different dates for this purpose and as to why application under Section 311 of Cr.P.C. for recalling the complainant for cross-examination could not be moved at the earliest. 11. In the present case, since no valid reason has been assigned, as to why complainant could not be cross-examined despite several dates fixed, therefore, I do not find any reason to take a contrary view to the view taken by the learned Magistrate. 12. Petition is devoid of merit. Hence, the same is dismissed in limine.