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TMI Blog2021 (12) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In furtherance of the above, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice - this Court is of the opinion that interest of justice would be served if the petitioner is allowed one last opportunity to lead defence evidence, subject to his examining the defence witnesses on one single day. It is directed that the matter be listed before the concerned Trial Court on 10.12.2021 for the petitioner to take appropriate steps for leading his defence evidence. The same shall however be subject to payment of cost of ₹ 10,000/- to be payable to the respondent, within a period of three weeks from today - Petition disposed off. - CRL.M.C. 1200/2020 and CRL.M.A. 4648/2020 - - - Dated:- 22-11-2021 - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI Petitioner Through: Mr. Varun Dhingra, Advocate Respondent Through: Mr. Vijay Babbar, Advocate MANOJ KUMAR OHRI, J. (ORAL) 1. The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner assailing the order dated 22.11.2016 passed by the learned Metropolitan Magistrate (NI Act), Central-01, Tis Hazari Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45(2) NI Act. In view of the Negotiable Instruments (Amendment) Ordinance, 2015, the complaint case was transferred to the learned Metropolitan Magistrate (NI Act), Central, Tis Hazari Courts, Delhi, vide order dated 22.01.2016 passed by the learned CMM, Central, Delhi. On 18.05.2016, learned counsel for the complainant gave no objection to the petitioner s application under Section 145(2) NI Act and accordingly, the matter was put for cross-examination of the complainant on 24.08.2016. Thereafter, the petitioner remained unrepresented before the Trial Court, resulting in issuance of NBWs against him and forfeiture of personal bond and surety bond submitted on his behalf. On 22.11.2016, the petitioner s right to cross-examine the complainant was closed, in view of his continuing absence. Thereafter, on 22.11.2018, process under Section 82 Cr.P.C. was also issued against the petitioner. Vide order dated 10.01.2020, he was given last opportunity by the Trial Court to lead defence evidence, which opportunity was subsequently closed. 4. Learned counsel for the petitioner submits that the petitioner s nonappearance before the Trial Court was not intentional and cross-examination of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner s behalf for exemption from personal appearance and no such ground was raised before the Trial Court on that day. Only when the application under Section 311 Cr.P.C. came to be filed in the year 2020, the petitioner averred that on 22.11.2016, he was suffering from various ailments and his previous counsel had also expired, due to which he could not appear before the concerned Court. 10. It is worthwhile to note that the petitioner remained absent from the proceedings before the Trial Court for a substantial amount of time, causing unnecessary delay, and appeared only subsequent to issuance of process under Section 82 Cr.P.C. The application seeking recall of the complainant witness was also moved by the petitioner only when his right to lead defence evidence came to be closed and the matter was listed for final arguments. 11. As per the exposition of law outlined hereinabove, it is apparent that mere change of counsel cannot be a ground to recall a witness. It is further discernible that no prejudice would be caused to an accused if relief of recalling a witness is denied, considering that the accused was given sufficient opportunity to examine the witness but he failed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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