1.( 2025:HHC:43599 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 976 of 2025 Reserved on:18.11.2025 Decided on : 15.12.2025 Kapoor Chand Sharma ....Petitioner Versus Ramesh Chand ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? yes For the petitioner : Mr. G.R. Palsra, Advocate. For the respondent : Nemo. Rakesh Kainthla Judge The petitioner has filed the present petition against the order dated 03.09.2025, passed by learned Additional Chief Judicial Magistrate, Rampur, District Shimla, H.P. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. It has been asserted that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI 2.( 2025:HHC:43599 ) Act). The accused filed an application U/S 348 of the BNSS for further cross-examination of the complainant because he had changed his earlier counsel and engaged another counsel. The earlier counsel had not put necessary questions to the complainant regarding his financial capacity, the advance of the money, the mode of payment and the status of M/s BHK company. The learned Trial Court dismissed the application. The further cross-examination of the complainant was necessary to impart fair and complete justice to both parties. No prejudice would be caused to the other side. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 3. Mr G.R. Palsra, learned counsel for the petitioner/accused, submitted that the earlier counsel of the accused had not asked the relevant questions regarding the financial capacity, advancing of the money, mode of payment and the status of M/s BHK Company. This fact was discovered by newly engaged counsel. The learned Trial Court dismissed the application without any justification. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 3.( 2025:HHC:43599 ) 4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 5. The complaint has been filed against the accused in his capacity as a director/proprietor of M/s BHK Construction Company Private Limited. The accused is the best person to know about the status of BHK Construction Company Private Ltd, and it is not disclosed how the complainant could have replied to the questions relating to the status of BHK Construction Ltd. 6. The petition does not mention that the financial status was challenged in the reply to the notice issued by the complainant. The Hon’ble Supreme Court held in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735: 2022 SCC OnLine SC 302 that unless the financial capacity of the complainant is challenged in reply to the notice issued by him, he cannot be expected to lead evidence regarding the financial capacity. It was observed at page 740: “10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act, the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act are not a civil suit. At the time, when the complainant gives his evidence, 4.( 2025:HHC:43599 ) unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable, which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross- examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether, in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.” 7. Further, it is not shown that the pleas sought to be taken during cross-examination were taken in an application filed under Section 145 (2) of the N.I. Act. Therefore, it cannot be accepted that the earlier counsel had failed to ask the relevant question. 8. The application was filed to recall the witness because the accused had changed his counsel. It was laid down by the Hon’ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402: 2015 5.( 2025:HHC:43599 ) SCC OnLine SC 799 that a witness cannot be recalled on the change of counsel. It was observed at page 416: “15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross- examination was not proper for reasons attributable to counsel. 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 conducting a case is competent, particularly when counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of counsel can have serious consequences on the conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.” 9. A similar view was taken by the Allahabad High Court in Girish v. State of U.P., 2020 SCC OnLine All 1063, wherein it was observed: 6. Considering the facts and circumstances of the case, arguments advanced, and after going through the entire judgment, this court is of the view that the arguments advanced by the counsel are not sustainable and that the plea can not be taken by the revisionist's counsel that he has been subsequently engaged; therefore, one more opportunity may be given 6.( 2025:HHC:43599 ) to him. It is within the rights of the litigant to engage any counsel at any stage, but the engagement of the new counsel and the dawn of fresh wisdom upon the first informant cannot be allowed to further delay the matter. The circumstances under which the application was rejected are sufficiently shown in the impugned order. The impugned order does not reflect any element of inconsistency or any abuse of the court's process, which may persuade this Court to interfere in the same.” 10. Madhya Pradesh High Court also held in Veerendradas Bairagi v. Shreekant Bairagi, 2019 SCC OnLine MP 7006: ILR 2019 MP 1318 that a witness cannot be recalled on the change of counsel. It was observed at page 1331: “9. In the present case, it appears from the application filed under section 311, Cr.P.C., that a request for re-examination has been made solely on the ground that Senior Counsel has been engaged in place of a Junior Counsel, as the Junior Counsel, according to the petitioner, has not conducted the cross- examination of witnesses in an effective manner. However, in the light of the legal position, as discussed above, it is certainly not within the scope of section 311 Cr.P.C. to countenance such a prayer. No illegality or perversity has been committed by the trial Court in passing the impugned order.” 11. Delhi High Court also took a similar view in Sushil Ansal v. State (NCT of Delhi), 2021 SCC OnLine Del 4388 and observed: 16. Thus, the consistent view of this Court is that a mere change of counsel would not 7.( 2025:HHC:43599 ) suffice to recall the witness to put certain suggestions in the manner the new counsel desires. The petitioner had engaged earlier counsel of his choice. He made a decision not to cross-examine, not one but 18 witnesses, probably, because the petitioner is facing a charge of conspiracy only, and hence such a decision, viz, not to cross-examine 18 witnesses, cannot be said to be an inadvertent act but may be a part of his strategy. Since a considerable delay has taken place, the plight of the victim can also not be ignored. 12. Karnataka High Court also held in Steel Rocks Inc. v. Bangalore Elevated Tollway (P) Ltd., 2024 SCC OnLine Kar 27021 that a change of counsel does not entitle a party to recall a witness. It was observed: “12. On a coalescence of the law elucidated by the Apex Court, what would unmistakably emerge is that it is not a matter of course that an application under Section 311 of the Cr. P.C. should be permitted. Mere change of counsel cannot be a ground to recall the witness. The application must contain details as to why the witness is required to be recalled. Recalling of witnesses should not be permitted at the fag end of the trial. These are the broad principles laid down by the Apex Court in the aforesaid judgments. Therefore, consideration of the application under Section 311 of the Cr. P.C. can be only on a case to case basis, depending upon the failure of justice that would emerge, if the witness is not recalled. I fail to see any of the postulates enunciated by the Apex Court being present in the case at hand. It is not the case that PW-1 was not cross-examined or further cross-examined. It 8.( 2025:HHC:43599 ) has been done extensively. It is not the case that the application was filed at an earlier point in time. When the case was posted for its judgment, the subject application was filed by the petitioners. The reason projected by the learned counsel for petitioners before this Court is that the earlier counsel had fumbled, and the change of counsel has led to the filing of the application. The Apex Court has held that a change of counsel will not be a ground to allow the application under Section 311 of the Cr. P.C.” 13. Thus, a change in the counsel does not entitle a party to recall the witness for further examination. 14. No other point was urged. 15. The jurisdiction under Section 528 of BNSS is extraordinary and is to be exercised sparingly. In the present case, no case for the exercise of extraordinary jurisdiction under Section 528 of BNSS is made out. Hence, the present petition fails, and it is dismissed. 16. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 15,_December, 2025. (meera)