M/S AWADH CONSTRUCTION v. M/S AMAARPREET SHUTTERING

311 Cr.P.C was immediately filed before the Ld. M.M on 09.05.2022 for recalling of the complainant/CW1. But the same was dismissed. Hence, this petition. 3.0 Ld. counsel for the respondent opposes this petition submitting that the petitioner had due opportunity to cross-examine the complainant/respondent, which he availed ; he had cross-examined the respondent/complainant at length on 04.05.2022. No adjournment was sought. 3.1. Ld. Counsel for the respondent also submitted that that as petitioner did not disclose the documents/relevant facts, which he intended to put to the respondent in cross-examination, his application under Section 311 Cr.P.C was rightly dismissed by the Ld. Magistrate. 3.2 Ld. counsel for the respondent further submitted that ‘No Dues Certificate’ with respect to dues referred to by the petitioner in the present petition, is forged and fabricated and the respondent has already filed a complaint with the police in that regard. Even otherwise, the documents sought to be put to CW1/respondent in cross-examination, can be brought by the petitioner in his defence evidence. 3.2 Ld. counsel for the respondent also argued that after recording of statement of the petitioner/accused on 13.05.2022, the matter was fixed for defence evidence on 18.05.2022. But the petitioner/accused did not disclose before the Ld. Magistrate about filing of the present revision petition. Neither did he seek adjournment on this ground. Rather, an exemption was sought by the petitioner on the ground of illness, which shows his mala fide. 4.0. In rebuttal, Ld. counsel for the petitioner submitted that the petitioner/accused has been diligently appearing in the case; and never sought any adjournment. Only because the petitioner’s counsel had a very short time to prepare the matter for cross-examination of the complainant/CW-1/respondent and as the relevant documents could not be sent by the petitioner, who is based in Hyderabad, the petitioner deserves an opportunity to cross-examine the respondent in that regard. Ld. counsel for the petitioner also submitted that details of the documents were not given in the application u/s 311 Cr.P.C as the petitioner did not want to foreclose his defence. 5.0. I have duly considered the submissions made by both the sides. 6.0. It would be pertinent to refer to Section 311 Cr.P.C at the outset, which reads as under:

6.1 As is evident from the plain reading of this Section, a witness may be recalled if his evidence appears to be essential for the just decision of the case. Needless to mention that although, wide powers have been conferred on this Court, same have to be exercised judiciously. Need for such examination has to be weighed in the light of facts and circumstances of every case. A witness may be recalled, if his re- examination would assist the Court in arriving at just decision. 7.0. Perusal of the trial court record shows that the matter was fixed for the complainant/respondent’s evidence for 30.03.2022 and thereafter on 20.04.2022. On both these dates of hearing, adjournment was sought on behalf of the complainant because of his own ill health and death in the family. Thereafter, the matter was listed for the complainant/ respondent’s evidence on 04.05.2022. On 04.05.2022, the respondent/ complainant was examined as CW-1, cross-examined and discharged. From the same, it is apparent that the petitioner has been diligently participating in the proceedings. 8.0. It is the petitioner’s case that the complainant’s evidence was sent to him by e-mail on 02.05.2022 just two days before and hard copy was supplied to the petitioner’s counsel only at 4.00 pm on 04.05.2022, the date fixed for examination of the complainant. This is not disputed. 8.1. Ld. counsel for the petitioner submitted that time being short and the petitioner being located in Hyderabad, relevant documents as detailed in the petition, which were required to be put to the respondent in cross- examination, could not be provided/ supplied by the petitioner. Ld. counsel also submitted that he had sought time to cross-examine the complainant, but no time was given ; and thus he was compelled to cross-examine the complainant on 04.05.2022. On perusal of trial court record, no such request for adjournment has been found recorded in the order dated 04.05.2022. 8.2. Ld. counsel for the petitioner further submitted that with respect to the dues in question, the respondent had issued no due certificate ; the fact that the shuttering material was duly sent to the complainant/respondent, is clear from e-way-bills, and that the petitioner had issued blank cheque would be clear from copies of such blank cheques sought to be put in cross-examination of the complainant. Thus, putting of these documents to the respondent in cross-examination would only be in the interest of justice. Ld. counsel for the petitioner also submitted that he had cross-examined the respondent/complainant with respect to issuance of NOC by the complainant, issuance of blank cheques by the petitioner/ accused, delivery of material, but the said documents i.e. NOC, e-way bills and blank cheques, could not be put to the respondent/accused in cross-examination. 8.3. Ld. counsel for the petitioner argued that the petitioner shall be highly prejudiced, if he is not allowed to put the same to the respondent in cross-examination. 9.0. Perusal of the record shows that the aforesaid facts were put by the Ld. counsel for the petitioner to the respondent/complainant in cross- examination. The petitioner now intends to put to the respondent in cross-examination, the aforesaid documents i.e. NOC allegedly issued by the respondent reflecting that all the dues in question had been paid and the correspondence in that regard and other documents i.e. e-way bills to demonstrate delivery of material, blank cheques etc. Needless to mention that the petitioner was required to be more diligent. 11.0. Be that as it may. Considering the above facts and circumstances, I find substance in the petitioner’s plea that the aforesaid documents, as sought to be produced/to be put to the complainant/respondent in cross- examination may assist the Court in arriving at just decision. It is seen that an application u/s 311 Cr.P.C for recalling the respondent was filed by the petitioner within 3-4 days of the conclusion of the respondent’s cross-examination. In view of these facts and circumstances, the petitioner’s prayer for recalling the respondent/complainant for cross- examination is allowed. 12.0. Subject to payment of cost of Rs. 10,000/- to be paid to the respondent, the petitioner is given one opportunity to cross-examine the complainant/respondent with respect to the above, on the date so fixed for that purpose by the Ld. Magistrate. The cross-examination of the complainant/respondent shall be concluded on the same day and no adjournment shall be sought by the petitioner. 13.0. The petition is disposed of accordingly. 14.0. Pending applications, if any, are closed. (POONAM A. BAMBA) JUDGE NOVEMBER 23, 2022 Click here to check corrigendum, if any

JUDGMENT