ASHOK Vs. ALOK

JUDGEMENT

(1.) BY this criminal Revision filed under section 397 read with 401 of the CrPC the petitioner Ashok has challenged the order dated 9.9.2011 passed in criminal case No. 153/2009 by the Judicial Magistrate Class-I, Dewas allowing the application of the non-applicant/respondent Alok under section 311 of the

(2.) COUNSEL for the petitioner has vehemently urged the fact the trial Court had erred in allowing the application under section 311 of the CrPC for recalling the complainant for further questioning at the fag end of the trial. He urged that re-opening of trial cannot be permitted and the complainant cannot be recalled for cross-examination. Counsel for the petitioner stated that on the basis of principles of natural justice proper hearing has already been granted to the accused defendant to defend himself. Whereas counsel further stated that on several occasions i.e. on 20.5.2011, 21.6.2011, 12.7.2011, 21.7.2011 & 3.8.2011 opportunities were granted to the defendant to defend himself and the defendant himself closed the defence on 4.5.2011 and at the time of final hearing to produce such an application was not bonafide and was meant to protact the proceedings. Counsel has placed reliance in the matter of Rajkumar v. Smt. Gunmala : 2007 (1) MPLJ 579 and Mubarique Shah v. State of M.P. 2001 (II) MPWN 177 whereby this Court had held that filing of such application at the fag end of the trial i.e. calling reopening of complainant for further questioning at fag end of the trial cannot be permitted and complainant cannot be recalled for cross- examination. The application under section 311 of the CrPC was dismissed holding that the unbridled power of Court to re-summon witnesses has to be exercised on sound judicial discretion it cannot be allowd to fill up lacuna. Hence, counsel has prayed for setting aside the impugned order.

(3.) IN this view of the matter, I find that in the said case although the application was for examining a handwriting expert the accused is entitled to free and fair hearing of the trial and one opportunity must be given to him for rebuttal under section 139 of the Negotiable Instruments Act. Hence, I do not find any infirmity in the order passed by the lower Court and "it is upheld. It is heedless to say that the accused be granted only a single opportunity to cross-examine the complainant in the interest of justice between the parties. However, before with parting the order the trial Court is directed to complete the trial within a period of two months from today.