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TMI Blog2021 (12) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... sued against him. The petitioner has also assailed the order dated 21.01.2020 passed by the learned Metropolitan Magistrate-01 (NI Act), Central, Tis Hazari Courts, Delhi in CC No. 513321/16 (old CC No. 913/16), vide which his application, filed under Section 311 Cr.P.C. seeking recall of the complainant witness to cross-examine him, was dismissed and the right to lead defence evidence closed. 2. From a perusal of the material placed on record, it is apparent that the complaint in the present case came to be filed by the respondent on 24.12.2014 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). In the said complaint, it was alleged that the petitioner/accused was the proprietor of one M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 145(2) NI Act. In view of the Negotiable Instruments (Amendment) Ordinance, 2015, the complaint case was transferred to the learned Metropolitan Magistrate (NI Act), Central, Tis Hazari Courts, Delhi, vide order dated 22.01.2016 passed by the learned CMM, Central, Delhi. On 18.05.2016, learned counsel for the complainant gave no objection to the petitioner's application under Section 145(2) NI Act and accordingly, the matter was put for cross-examination of the complainant on 24.08.2016. Thereafter, the petitioner remained unrepresented before the Trial Court, resulting in issuance of NBWs against him and forfeiture of personal bond and surety bond submitted on his behalf. On 22.11.2016, the petitioner's right to cross-examine the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Shiv Kumar Yadav and Another reported as 2016 (2) SCC 402. Relevant excerpt from the case is reproduced hereunder:- "28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted." (emphasis added) 8. In the present case, on 26.03.2015, the Trial Court while framing the notice under Section 251 Cr.P.C. granted two days' time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel had expired in course of the proceedings, and for that reason, he could not move the application under Section 311 Cr.P.C. seeking recall of the complainant witness in time. From the record of the case, it is apparent that on 24.08.2016, when the matter was listed for cross-examination of the complainant witness, a proxy counsel had appeared and moved an application on the petitioner's behalf for exemption from personal appearance and no such ground was raised before the Trial Court on that day. Only when the application under Section 311 Cr.P.C. came to be filed in the year 2020, the petitioner averred that on 22.11.2016, he was suffering from various ailments and his previous counsel had also expired, due to which he could not appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the above, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice. 14. Accordingly, this Court is of the opinion that interest of justice would be served if the petitioner is allowed one last opportunity to lead defence evidence, subject to his examining the defence witnesses on one single day. The cross-examination of all such defence witnesses shall also be conducted on the same day. 15. It has been informed that the next date of hearing fixed before the Trial Court is 15.01.2022. 16. In view of the undertaking given on behalf of the petitioner, it is directed that the matter be listed before the concerned Trial Court on 10.12.2021 for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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