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TMI Blog2021 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the aforesaid Receipts was mentioned in the Criminal Complaints, while other documents were mentioned at the time of the cross-examination in as early as 2018, the petitioner s applications under Section 311 Cr.P.C. for his re-examination and placing on record of the aforesaid documents cannot be said to constitute filling up of lacuna in the case. Both the petitions are allowed, subject to payment of composite cost of ₹ 10,000/- to be deposited by the petitioner with the Delhi State Legal Services Authority within two weeks from the date of passing of this order. - CRL.M.C. 844/2020 and CRL.M.A. 3429/2020 and CRL.M.C. 850/2020 and CRL.M.A. 3442/2020 - - - Dated:- 2-12-2021 - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI Petitioner Through: Mr. Alok Bhachawat, Mr. Uday Singh and Mr. S. Jeeva Nandan, Advocates. Respondent Through: Mr. Atul Bandhu, Advocate. JUDGMENT MANOJ KUMAR OHRI, J. 1. The above-noted petitions have been filed under Section 482 Cr.P.C. on behalf of the petitioner for setting aside of the order dated 08.08.2019 passed by the learned Metropolitan Magistrate, Patiala House Courts, New Delhi in Criminal Complaint Nos. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn on Kotak Mahindra Bank, Punjabi Bagh, New Delhi and No. 000014 dated 28.08.2017 drawn on HDFC Bank, Rajouri Garden, New Delhi, were issued in favor of the petitioner. However, on presentation, the aforesaid cheques got dishonored with the remarks funds insufficient and upon issuance of demand notice dated 28.09.2017, the respondent failed to make the payment of outstanding cheque amounts, resulting in filing of the aforesaid Criminal Complaints. 4. Mr. Alok Bhachawat, learned counsel for the petitioner, submits that initially Collaboration Agreements dated 13.10.2011 and 20.09.2013 were executed in favor of the respondent by the erstwhile owners of the properties aforementioned, whereby ownership rights were created in his favor. At the time of payment of ₹ 30 lacs and ₹ 20 lacs by the petitioner as advance, in respect of each transaction, Bayana Agreements dated 18.04.2014 and 01.09.2014, and respective Receipts of the same date were also executed. It is submitted that inadvertently the aforesaid documents could not be placed on record along with the complaint, and accordingly, applications under Section 311 Cr.P.C. for recalling and reexamining the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is as follows - 311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. 9. The scope of Section 311 Cr.P.C. has been considered by the Supreme Court in P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56, where the Court held as under:- 20. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs. xxx xxx xxx 23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court , at any stage , or or any enquiry, trial or other proceedings , any person and any such person clearly spells out that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant by virtue of his application, despite ample opportunities having been granted earlier to lead defence evidence. Notably, four applications were filed by him, even after closure of defence evidence. In fact, a transcript of the audio cassette which he sought to confront the complainant with by way of re-examination, was already on record way before the defence evidence came to be closed and yet, he failed to raise the questions. It was in this backdrop that the Court observed that allowing another application and a further opportunity to the petitioner/accused, who had already caused a delay of about two years in the trial, would amount to mockery of the law. In the present case, on the other hand, it is the complainant who seeks to re-examine himself to bring on record documents which were admitted by him during cross-examination but inadvertently not placed on record. Prima facie, it is also important in the interest of justice that the documents mentioned be brought on record for fair disposal of the case. 13. Further, considering that the factum of execution of the aforesaid Receipts was mentioned in the Criminal Complaints, while other documents were mentioned at the ..... 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