Page No. 1/6 GAHC010151402025 2025:GAU-AS:9486 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./853/2025 KAMAIAH ENGINEERING SERVICES PRIVATE LIMITED AND ANR REPRESENTED BY ITS DIRECTOR MR. KODA SUDHAKAR RAO. REGISTERED ADDRESS.- DOOR NO.13-2-138/A, WARD NO.14. TILAK NAGAR, PALASA, ANDHRA PRADESH, PIN- 532222. 2: MR KODA SUDHAKAR RAO S/O- KODA DHANAJAY RAO. HOUSE NO.-92 BHETAPARA ROAD HATIGAON OPPOSITE AIUDF HEAD OFFICE GUWAHATI-78103 VERSUS GHANA KANTA GOHAIN S/O- LATE DURGADHAR GOHAIN. R/O- RAGHUGURI GAON, P.O.- BHADHARA, PIN-785640, P.S. AND DIST.- KAMRUP(M) ASSAM. Advocate for the Petitioner : MR. I CHOUDHURY, R L CHUTIA Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 23.07.2025 Heard Mr. I. Choudhury, learned counsel for the petitioners. Page No. 2/6 2. The instant criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 has been instituted to assail an Order dated 25.06.2025 passed by the Court of learned Additional Chief Judicial Magistrate, Sivasagar [‘the Trial Court’, for short] in N.I. Case no. 14/2022. By the Order dated 25.06.2025, the Trial Court has dismissed a petition filed by the petitioners, who are facing the trial, as accused, seeking liberty to further cross- examination of the complainant, who deposed as P.W.1. 3. The complaint of N.I. Case no. 14/2022 has been instituted by the complainant, who has been arraigned as the sole respondent in the instant criminal petition, with the allegation that a number of cheques issued by the petitioners in his favour from an account maintained by the petitioners stood dishonoured on the ground of insufficiency of fund in the account when the cheques were presented for collection. The complainant has alleged that the petitioners had committed an offence under Section 138 of Negotiable Instruments Act. The Trial Court on institution of the complaint, took cognizance of the offence and issued process against the accused persons, that is, the petitioners who upon receipt process entered appearance in the case. Thereafter, the petitioners as accused are contesting in the trial. 4. From the materials on record, it has emerged that the recording of evidence of the complainant side had long been over. On 25.06.2025, the case was posted for statement and defence. It was prior to 25.06.2025, the petitioners preferred a petition, Petition no. 5179/2025 under Section 311, CrPC with a prayer to allow the accused side to further cross- examine the complainant. 5. It is pertinent to mention that the examination and cross-examination of the complainant as P.W.1 was concluded on 17.08.2024. 6. In order to understand the nature of challenge, it is appropriate to extract the relevant excerpts of the impugned order dated 25.06.2025, as it has also succinctly stated the relevant facts, Page No. 3/6 On perusal of the petition of the accused it transpires that primary ground for further cross examination of the complainant germinates from the fact that a civil suit has been filed by the accused against the complainant and the Written Statement [W.S.] filed by the complainant in the said civil suit may contain contradictory pleas that could be relevant to the present proceedings. The accused contends that re-cross-examination is necessary to confront the complainant with these alleged contradictions. The basis for prayer of further cross-examination of the complainant is that plea taken by him in the written statement filed by him constitute new material that justifies his re-cross-examination. Such further cross-examination is essential to bring out inconsistencies in the complainant's statements, which may impact the credibility of the complainant's testimony in this case. Perusal of the case record reveals that the cross-examination of the complainant was concluded on 17.08.2024, and a suggestion was put to him that the accused had filed a title suit against him which he had denied to be aware of. Thus, it can be gathered that the accused at the time of cross-examination of the complainant had already filed a title suit against him. The accused was all aware of the title suit and he had ample opportunity during the initial cross-examination to confront the complainant with the pleas raised in the civil suit and it cannot be said that new or exceptional circumstances have arisen to warrant re-opening of the cross-examination of the complainant. Even, otherwise, the accused has failed to specifically outline as to how the recalling of complainant for the purpose of cross-examination is necessary for a just decision of the case and have vaguely stated that further cross-examination of the complainant is required as the complainant had made contradictory statements in the written statement. Further, this petition also appears to be a tactic to delay the trial as because the learned counsel for the complainant have submitted that the complainant had filed written statement in the title suit on 21.10.2024. From the case record it is evident that in between 21.10.2024 to 13.06.2025 [i.e. the date of filing petition for further cross-examination of the complainant] the complainant filed evidence of PW2 and the accused duly cross examined the said Page No. 4/6 witness and case proceeded to the stage of examination of accused u/s 313 CrPC and after waiting for around ten months the accused filed the instant petition. Given the said facts it invariably suggest that the present petition have been filed by the accused only to delay the progress of the trial. 7. Mr. Choudhury, learned counsel for the petitioners has submitted that when the complainant [P.W.1] was asked a question during the cross-examination as regards filing of a civil suit, the complainant [P.W.1] answered in the negative. Mr. Choudhury has submitted that on the date of giving such answer, there was a civil suit instituted, by the petitioners’ side as the plaintiffs and the complainant had already been received the summons in the said case. In order to question the complainant on the said aspect, further cross-examination of the complainant is necessary and in that view of the matter, the petition under Section 311, CrPC was filed. 8. As mentioned above, the stages of examination-in-chief and cross-examination of the complainant [P.W.1] were over and his evidence was closed on 17.08.2024. 9. Section 137 of the Evidence Act has provided for only examination-in-chief, cross- examination and re-examination. Section 138 of the Evidence Act has provided for the order of examinations. As per Section 138, witnesses shall be first examined-in-chief, then [if the adverse party so desire] cross-examined, then [if the party calling him so desires] re- examined. Section 138 has also provided about the scope of re-examination. As per Section 138, the re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. There is, thus, no provision for further cross-examination of a prosecution witness unless the prosecution side itself calls the witness for re-examination. 10. The provisions of Section 311, CrPC has inter-alia empowered the Court to recall and re-examination any person already examined and the Court shall recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the Page No. 5/6 case. It well settled that the power conferred under Section 311, CrPC is to be invoked by the Court only to meet the ends of justice and the power is to be exercised with caution and circumspection. The power is to be exercised only for strong and valid reasons. Under the second part of Section 311, CrPC, the Court has the power to recall witnesses for re- examination or further examination if such re-examination or further examination appears to be essential for just decision of the case. A question left to be asked to a prosecution witness during his cross-examination by the accused cannot be equated with the necessity for just decision of the case in the absence of anything more. In the case in hand, it was after closure of the evidence of the complainant [P.W.1] upon his examination-in-chief and cross- examination the petition was filed by the petitioners’ side to recall the complainant [P.W.1] for his further cross-examination with invocation of the power by the Court under Section 311, CrPC, on the ground that certain questions were left to be asked to the complainant [P.W.1] during his cross-examination. 11. The reasons assigned by the learned Trial Court for not allowing the petition of the petitioners are found to be well reasonsed. The accused side had all the opportunity to cross- examine the complainant. After closure of the evidence of the complainant, another witness as P.W.2 was examined and cross-examined by the complaint’s side. 12. If impeaching the credibility of the witness like the complainant is the object of the petitioners, with regard to the reply given by the complainant [P.W.1] pertaining to any civil suit instituted by the petitioners’ side as plaintiffs, such object can very well be achieved by the petitioners’ side by entering into the witness box themselves as the case, N.I. Case no. 14/2022 is at the stage of defence evidence, in the considered view of the Court is an effort to fill the lacunae apparently left by the accused at the stage of cross-examination of the complainant [P.W.1] and such filling up of lacunae by way of further cross-examination is not permissible in law. 13. In the above view of the matter, this Court finds no infirmity in the Order dated 25.06.2025, passed by the learned Trial Court, as the said Order is found to be well reasoned. Consequently, this criminal petition is found to be bereft of any merits and the same is Page No. 6/6 accordingly dismissed. JUDGE Comparing Assistant