-1- 2025:CGHC:45883 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1292 of 2022 M/s Tuteja Medical Agensis Through Navjeet Singh Tuteja, S/o Amrik Singh Tuteja, Aged About 38 Years, R/o Tuteja House, Near United Blood Bank House, Gurugovind Nagar Rajatalab Raipur, Tahsil And District Raipur, Chhattisgarh ... Petitioner(s) versus 1 - Sanjay Tekwani S/o Late Shri Nichal Das Tekwani Aged About 48 Years R/o Shankar Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh 2 - State Of Chhattisgarh Through District Magistrate, Raipur, District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Navin Shukla, Advocate For Respondent No.1 : Mr. Gopal Swaroop Gupta, Advocate on behalf of Mr. Vinod Kumar Pandey, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 09/09/2025 1. This Criminal Miscellaneous Petition is filed by the petitioner against order dated 07.04.2022 passed by learned Judicial Magistrate First Class, Raipur whereby application filed by Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.15 17:29:08 +0530 -2- petitioner under Section 311 of Cr.P.C. came to be dismissed. 2. Learned counsel for the petitioner submits that important question to be posed to respondent No.1/complainant could not be put to him during his cross-examination because on the said date, Mr. Sayyad Babar Ali, Advocate has cross-examined the witness who is junior to Mr. Sayyad Ali, Advocate engaged by petitioner. He next contended that in the proceedings of Writ Petition No. 2398 of 2018, there is admission on the part of complainant about handing over the cheque to complainant by non-applicant/accused. Said important question could not be put to complainant at the time of his cross-examination. Learned trial Court has not considered the ground raised in application appropriately and has arbitrarily dismissed the same. 3. Learned counsel for respondent No.1/complainant would submit that writ petition was filed by petitioner (accused), however, it came to be dismissed. Respondent was not the party to that writ petition. He further submits that ground raised by learned counsel for petitioner that there is admission by respondent in writ petition of handing over cheque to respondent/complainant is not sustainable as respondent was not the party to writ petition. 4. At this stage, learned counsel for the petitioner would submit that said writ petition was not dismissed, however, it was withdrawn to file appropriate proceeding before appropriate -3- forum. He further submits that writ petition which is mentioned in application under Section 311 of Cr.P.C. (Annexure P-3) as Writ Petition No.2398 of 2018 is wrongly mentioned and correct number is Writ Petition (C) No. 3298 of 2018. 5. I have heard learned counsel for the parties and also perused the documents annexed along with this Criminal Miscellaneous Petition . 6. Complainant/respondent was examined before learned trial Court on 25.02.2020. On the said date, he was also cross- examined. On 25.02.2020, after cross-examining the complainant to some extent, learned counsel for the accused appearing therein sought time for further cross-examination of complainant which was allowed and thereafter complainant was further cross-examined on 11.10.2021. 7. Learned counsel for the accused was granted sufficient time to cross-examine the complainant firstly on 25.02.2020 and thereafter his cross-examination was done after about one and half year i.e. on 11.10.2021. 8. In the aforementioned facts of case, submission of learned counsel for the petitioner, that counsel engaged by petitioner could not examine the complainant as no time was granted to cross- examine the witness/complaint on the date of his cross- examination, is not sustainable. Further, from the application -4- filed under Section 311 of Cr.P.C. it is apparent that aforementioned ground that, witness was cross-examined by junior Advocate and not by counsel engaged by petitioner/non- applicant therein i.e. Mr. Syyad Ali, Advocate is also no taken as one of the ground in the application filed under Section 311 of Cr.P.C. for recalling of witness. The only ground which is taken in application is that complainant has admitted handing over the cheque by accused to him in the proceeding of WPC No.3298 of 2018. Copy of petition, nor reply nor order sheet of proceeding of writ petition has been placed on record. Further, it is not disputed by learned counsel for the petitioner that in the said writ petition, respondent herein/complainant was not party. In fact it is stated that writ petition itself was withdrawn to file appropriate proceeding before appropriate forum for the relief as sought for in that writ petition. 9. It is settled law that recalling of witness is not on mere asking by the party but specific ground is to be made out for recalling of witness. 10.Hon’ble Supreme Court in case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Anr. reported in (2016) 2 SCC 402 while dealing with the issue of re-calling of witness for its re- examination has observed thus: 11. It is further well settled that fairness of trial has to be seen not only from the point of view of -5- the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case. x x x x x x 15. ………... While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel -6- conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. …………………... 27. …………... Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” 11.For the foregoing discussions, decisions of Hon’ble Supreme Court as referred to above and submissions of learned counsel for the respective parties, in particular pleadings made in para-2 of the application filed under Section 311 of Cr.P.C. about -7- acceptance of respondent of cheque handed over by petitioner/accused person, I do not find any good ground to interfere with the impugned order passed by learned Magistrate rejecting application under Section 311 of Cr.P.C. and further dismissing the Criminal Revision by learned Sessions Judge, Raipur vide order dated 27.06.2022 filed challenging order dated 07.04.2022 passed by Judicial Magistrate First Class, Raipur. 12.This Criminal Miscellaneous Petition is bereft of merit and is accordingly dismissed. Sd/----/-/- (Parth Prateem Sahu) Judge Praveen