TMI Blog2022 (5) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 23-02-2022 passed by the IV Additional Civil Judge JMFC, Mysuru in C.C. No. 2100 of 2015 rejecting the application filed by the petitioner under Section 311 of the Cr.P.C. seeking recall of PW-1 for further cross-examination. 2. Heard Sri. Praveen Kumar. G.S., learned counsel for petitioner. 3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The petitioner and the respondent are parties to a transaction which resulted in the respondent registering a complaint under Section 200 of the Cr.P.C. for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code. Since the issue revolves round on a narrow compass, other details about the transaction or the proceedings are not necessary to be noticed. 4. The examination-in-chief of the complainant happened by way of an affidavit on 12-12-2018. The matter was adjourned for cross-examination of the complainant from 12-12-2018 to 26.08.2019. The claim of the petitioner is that due to short of time, the advocate for the accused was not able to collect complete information with regard to the case. Lack of securin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , accused prays that, this Hon'ble court be pleased to recall the PW-1 to Cross examine, in order to meet the ends of justice, in the above case, in the interest of justice. The narration in the application is that after the cross-examination on 26-08-2019 the counsel who cross-examined the complainant died due to COVID-19 and recall is sought that since there was complete disturbance due to COVID-19 not much concentration was made on the area of cross-examination of PW-1. Detailed objections were filed by the complainant to the said application. The Court considering the application and the objections has passed the following order: 7. Heard arguments on both side. The learned counsel for the accused has relied upon the following decisions, Crl. P. No. 144/2006, Crl. A. No. 1307/2014 and Crl. A. No. 688/2009. 8. On going through the record, the complainant has filed this complaint for the offence punishable U/S. 138 of NI Act against the accused and evidence of the complainant is closed and his cross examination was completed on 26.08.2019 and on very same date 313 statement was recorded. Later accused has lead his evidence on 22.10.2019 and counsel for Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section is intended to arm the court with the most extensive power possible for the purpose of getting at the truth. 12. Since the grounds urged by the accused in his application is not satisfactory to allow the same at belated stage and the evidences appears before the court are sufficient to adjudicate the matter. More over as per section 143(3) of N.I. Act the trial is to be concluded within six months from the date of complaint and present complaint is of the year 2015 and it is more 6 years old case. Therefore the application filed by the accused has no merits. Accordingly, this Court proceed to pass the following: ORDER Application filed U/Section 311 of Cr.P.C. filed by the accused is hereby rejected. The Court observes that cross-examination of PW-1 was completed on 26-08-2019 and the application under Section 311 Cr.P.C. is preferred at the time when the counsel for the complainant has commenced his arguments and the counsel for the petitioner had remained absent on several occasions. Noticing the fact that the application was filed at a belated stage, without even divulging as to what are the rival aspects with regard to the cross-examination have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r trial or other proceeding under this Code . It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said wider the power, greater is the necessity of caution while exercise of judicious discretion . 15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136: (2011) 3 SCC (Cri.) 371: (2012) 1 SCC (L S) 240]: (SCC p. 141, para 17) 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice. (Emphasis supplied) In the light of the judgment rendered by the Apex Court and the facts obtaining in the case at hand, the submission of the learned counsel that the cross-examination of P.W. 1 could not be complete in the light of the counsel consequently dying of COVID undoubtedly merits consideration. The petitioner has produced record to demonstrate that the counsel whom he had engaged did die of COVID. Therefore, I deem it appropriate to grant one opportunity to the petitioner to further cross-examine P.W. 1, albeit, with imposition of cost. 8. For the aforesaid reasons, the following: ORDER (i) The writ petition is allowed. (ii) The order dated 23.02.2022, passed in C.C. No. 2100/2015, stands quashed. (iii) The petitioner stands permitted to cross-examine PW. 1 on 16.04.2022, subject to payment of cost of Rs. 3,000/- (Rupees Three Thousand Only) payable to PW. 1. The cross-examination shall be concluded on the same day. (iv) The payment of cost shall be condition precedent to the cross-examination on 16.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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