TaxTMI 
TaxTMI 
2022 (5) TMI 68
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....the funds insufficient. Pursuant to which, the respondent-complainant initiates proceedings under Section 138 of the Negotiable Instruments Act, 1881 in the year 2013. 3. During the pendency of these proceedings, the petitioner files an application under Section 311 of the Cr.P.C. seeking cross-examination of PW-2. This was permitted and the petitioner was directed to cross-examine PW-2 on 30.11.2021, on which date, the learned counsel submits that he could not cross-examine owing to certain inevitable personal inconvenience. 4. Another application was filed by the petitioner seeking cross-examination of PW-2, who was never cross-examined in the trial. This is rejected on the ground that the petitioner has repeatedly filed application....
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....RDERS ON APPLICATION FILED U/SEC. 311 OF CR.P.C. DATED.-4.10.2021 The learned counsel for the accused filed this application under Sec. 311 of Cr.P.C. seeking permission to further cross-examine of P.W. 2. 2. it is contended in the application that, on the previous hearing date, when the case of posted for cross examination of Pw:2, the senior counsel of the accused was held up in High Court of-Karnataka. So junior counsel for the accused has prayed for time to cross examination and same was rejected by the court and cross examination of witness was taken as nil. it is contended that accused has good case on merits and therefore cross examination of Pw:2 is very much necessary for just and proper decision. With these averm....
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.... of PW:2 for the purpose of cross-examination is hereby allowed with cost of Rs. 1,000/- as a condition precedent. The accused shall conclude the cross examination of PW:2 on or before 30.11.2021. For payment of cost and cross examination of Pw:2 by. 24.11.2021." The cross-examination was permitted on imposition of cost of Rs. 1,000/- and was directed to conclude the cross-examination on 30.11.2021, the petitioner did not cross-examine PW-2 on the said date. 8. Learned counsel appearing for the petitioner submits that it was due to grave personal inconvenience, the said opportunity could not be utilized. Later, an application again being filed under Section 311 of the Cr.P.C. is turned down by the following order: "A....
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.... 2nd successive application filed by accused U/s. 311 of Cr.P.C. is hereby rejected. For 313 statement of accused by 10.03.2022. VI ASCJ and ACMM" (emphasis supplied) The Court records that the earlier application was allowed and the petitioner was directed to cross-examine PW-2 on 30.11.2021, the same is utilised by the petitioner. 9. The fact remains that the learned counsel appearing for the petitioner-accused has not been able to cross-examine the complainant at any point in time in the proceeding. Therefore, it would become a case where there is no cross-examination permitted to the petitioner and result in miscarriage of justice. Since the petitioner is the accused, all opportunity to the accused to ....
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....d 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 u. 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 ....
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.... witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. it is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised aft....