JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal MISC. petition under Section 482 Cr.P.C., 1973 against the order dated 20.07.2018 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No.3, Jodhpur Metropolitan in Criminal Original Case No. 107/2016 whereby the learned court below has rejected the application under Section 311 Cr.P.C., 1973 and Section 165 of Evidence Act filed by the petitioner. 2. Brief facts of the case as noticed by this Court are that respondent No.1 and the petitioner are father and son respectively, and the proceedings under section 138 of N.I. Act are going on against the father as lodged by his son. 3. As the record of the case would reveal, the case was initiated on 22.08.2016 and cognisance was taken by the learend court below on 03.09.2016. The evidence of the petitioner was completed on 24.05.2017 and the evidence of the respondent was completed on 11.10.2017. The learned court below has posted the matter for final arguments on 03.11.2017, but for some or other reasons, the final arguments could not take place. 4. As per the pleaded case of the petitioner, on 13.04.2018, he engaged a new counsel and on 19.04.2018, an application was moved by the petitioner under Section 311 Cr.P.C., 1973 and Section 165 of the Evidence Act, but the same came to be rejected by the learned court below vide the impugned order dated 20.07.2018. 5. Learned counsel for the petitioner submits that the provisions of Section 311 Cr.P.C., 1973 ought to be liberally construed as the petitioner could not bring the document in question on record earlier because of the mistake of the counsel. However, once the counsel has been changed, the petitioner received an advice that such documents were necessary, and thereafter, he made efforts therefor by moving an application under Section 311 Cr.P.C., 1973 6. Learned counsel for the petitioner in support of his submission, has relied upon the judgment rendered by Hon'ble Apex Court in P. Chhaganlal Daga vs. M. Sanjay Shaw reported in 2001 0 Supreme (SC) 1384 , where by the Hon'ble Apex Court has said that there cannot be a stage for exercising the powers of Section 311 Cr.P.C., 1973 and the powers of Section 311 can be exercised even when the evidence of both the sides are closed. 7. 7. Learned counsel for the respondent however, refutes the aforesaid submission made on behalf of the petitioner on the ground that change of counsel or a mistake on the part of the counsel cannot become a ground to reverse back the trial, which was even scheduled for final arguments way back on 03.11.2017, and thereafter, the same has also been posted for judgment, even prior to the application so moved by the petitioner. 8. Learned counsel for the respondent has relied upon the judgment rendered by Hon'ble Apex Court in State of Haryana vs. Ram Mehar and Ors. reported in AIR 2016 Supreme Court 3942 . The relevant portion of which reads as under: '24. The decisions of this court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any strait jacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilised to build Castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. Be it stated when the process of the court is abused in the name of fair trial at the drop of a hat, there is miscarriage of justice. And, justice, the queen of all virtues, sheds tears. That is not unthinkable and we have no hesitation in saying so. 34. Keeping in mind the principles stated in the aforesaid authorities the defensibility of the order passed by the High Court has to be tested. We have already reproduced the assertions made in the petition seeking recall of witnesses. We have, for obvious reasons, also reproduced certain passages from the trial court judgment. The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesses. The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesses. That apart, it has been urged that certain suggestions could not be given. The marrow of the grounds relates to the illness of the counsel. It needs to be stated that the learned trial Judge who had the occasion to observe the conduct of the witnesses and the proceedings in the trial, has clearly held that recalling of the witnesses were not necessary for just decision of the case. The High Court, as we notice, has referred to certain authorities and distinguished the decision in Shiv Kumar Yadav (supra) and Fatehsinh Mohansinh Chauhan (supra). The High Court has opined that the court has to be magnanimous in permitting mistakes to be rectified, more so, when the prosecution was permitted to lead additional evidences by invoking the provisions under section 311 CrPC, 1973. The High Court has also noticed that the accused persons are in prison and, therefore, it should be justified to allow the recall of witnesses. 38. At this juncture, we think it apt to state that the exercise of power under section 311 CrPC, 1973 can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words 'magnanimous approach' and how it should be understood. Therefore, a balance has to be struck. We have already explained the use of the words 'magnanimous approach' and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limit lessee stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.' 9. After hearing learned counsel for the parties as well as perusing the record of the case along with the precedent law cited at the Bar by learned counsel for both the parties, this Court is of the opinion that the petitioner knowingly and as a conscious citizen, participated in the trial under section 138 of N.I. Act, and the learned court below has even gone to the extent of recording that the petitioner's alertness was so high that he even had got the written agreement signed and completed all the legal formalities before giving money to his own father, and therefore, he cannot be said to be unaware of the ongoing litigation. 10. The precedent law cited by learned counsel for the petitioner is not applicable in the present facts and circumstances, as the only reason given by the petitioner for not rendering the documents earlier was change of counsel, which is not a reason covered under the precedent law cited by learned counsel for the petitioner. 11. This Court also finds that the precedent law cited by learned counsel for the respondent is applicable in the present case and at this fag end of the trial when the matter is posted for judgment, no indulgence can be granted under Section 311 Cr.P.C., 1973 particularly when the petitioner had sufficient opportunity at the time of rendering his evidence and cross examining the respondent to have brought the facts and documents on record at that juncture itself. The ground of change of counsel also cannot become a ground for reversing trial from the final hearing to initiation thereof. 12. In view of above, the present petition does not call for any interference and the same is accordingly dismissed.