Discretionary Power Under Section 311 CrPC May Be Exercised for Just Decision Despite Accused’s Dilatory Conduct

The petitioner (complainant) initiated proceedings against the respondent (accused) under Sections 138/142 of the Negotiable Instruments Act, 1881, following the dishonor of cheques totaling ₹1.25 Crore due to the account being closed.

After the matter reached the stage of final arguments and nearly three years after the accused’s right to cross-examine was closed, the accused moved an application under Section 311 CrPC to recall the complainant's authorized representative (CW-1) for cross-examination.

The Trial Court allowed the application on 11.03.2022, citing the necessity of the evidence for a just decision, subject to costs of ₹10,000.

The petitioner challenged this order, alleging dilatory tactics and mala fides by the accused.

1. Whether the Trial Court’s exercise of discretionary power under Section 311 CrPC to recall a witness at the stage of final arguments was legally sustainable and essential for a just decision.

Section 311 of the Code of Criminal Procedure, 1973, which grants the court wide discretionary power to summon or recall witnesses at any stage if their evidence appears essential to a just decision.

The court relied on Rajaram Prasad Yadav v. State of Bihar and Manju Devi v. State of Rajasthan to emphasize that the paramount consideration is the search for truth and preventing a miscarriage of justice.

Statements in State (NCT of Delhi) v. Shiv Kumar Yadav and Ashutosh Pathak v. State of U.P. warning against the arbitrary use of such powers or allowing the filling of lacunae without valid reasons.

The High Court observed that while Section 311 CrPC must be exercised with circumspection, the Trial Court provided cogent reasons for its decision. Specifically, the accused had maintained a consistent defense regarding a lack of liability and claimed partial repayment of the dues in 2014—facts involving significant sums (crores).

The Court found that despite the accused’s past negligence and delays, granting one final opportunity to cross-examine CW-1 was necessary to adjudicate the case on its merits and ensure a fair trial.

The High Court rejected the petitioner’s argument that the change of counsel was the sole reason for the order, noting other mitigating circumstances like a fire in the accused's warehouse were substantiated.

By imposing costs, the Trial Court effectively balanced the equities between the parties.

The Trial Court rightly exercised its discretion to ensure a "just decision" based on the specific defenses raised by the accused.

The petition was dismissed, upholding the Trial Court's order allowing the recall of CW-1 for cross-examination subject to the payment of costs.