Kanta Goel Vs. Atul Gupta (Neutral Citation: 2024: DHC:617) - (High Court of Delhi) (30 Jan 2024)

Witnesses cannot be allowed to be recalled in a routine manner merely on basis that cross-examination was not properly conducted

MANU/DE/0609/2024

Banking

In facts of present case, the complainant/Petitioner had filed a complaint against the accused/respondent under Section 138 and 142 of the Negotiable Instruments Act, 1881 for returning of cheque dated 25th March, 2013 for a sum of Rs. 15,10,000 for the reason 'Funds Insufficient' vide return memo.

Vide impugned Order, Respondent/accused moved an application under Section 311 of Cr.P.C for recalling of CW-1 (Petitioner) as CW -1 was not sufficiently cross examined with respect to her source of income and financial capacity to extend the loan in question and the Trial Court allowed the said application while observing that though an application under Section 311 of Cr.P.C cannot be filed for filling the lacunas in the case of any of the parties, however, in the present case the cross examination of the complainant is essential for fair adjudication of the present case. Thereafter, the Petitioner filed Criminal Revision against the order and vide impugned Order, the same was dismissed with the observation that recalling of complainant for her recross-examination is essential for the just and proper adjudication this case.

From an overview of the material on record, it is borne out that sufficient opportunity to cross-examine CW-1 was available to the respondent and the same has also been availed by him thrice. The cross-examination of CW-1 stood concluded way back in 2019 but it is only on 20th July, 2022 that the Respondent moved the application under Section 311 of Cr.P.C. for recalling of CW-1 which was after a delay of more than two years and ten months of the cross- examinations.

As far as the contention of the Respondent that, the Petitioner/complainant (CW-1) was not sufficiently and properly cross- examined, on earlier occasions by the previous counsel does not cut much ice as the Supreme Court has time and again cautioned that witnesses cannot be allowed to be recalled in a routine manner merely on the ground that the cross-examination was not properly conducted.

Furthermore, as far as the contention of Respondent that the defence evidence is still to be led and therefore, he may be granted permission to place on record the cross-examination of the complainant in the complaint case, no such permission or liberty is required to be granted as the Respondent can certainly take appropriate steps as per law to place on record the cross examination of the Petitioner done in the Civil Court in the Civil Suit.The impugned order passed by trial Court are set aside. Petition disposed off.

Tags : WITNESS RECALL LEGALITY