1 SUN, J Crl.P_4872_4875_2023 Date of reserved for orders : Date of pronouncement : Date of uploading : APHC010336202023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3604] FRIDAY, THE 18th DAY OF SEPTEMBER 2026 PRESENT THE HONOURABLE SMT JUSTICE SUNITHA GANDHAM CRIMINAL PETITION Nos.4872 and 4875 OF 2023 CRIMINAL PETITION No.4872 OF 2023 Between: 1. REGULAGADDA HANUMANTHA RAO, S/O. RAMA LAKSHMANA RAO, AGED ABOUT 59. YEARS, OCC. CLERK/CASHIER/ASSISTANT BRANCH MANAGER, ANDHRA PRADESH GRAMEENA BANK, BHAMINI, SRIKAKULARN. ROAD NO.9, FILM NAGAR, JUBILEE HILLS, HYDERABAD ...PETITIONER/ACCUSED AND 1. THE STATE OF ANDHRA PRADESH, REP. BY PUBLIC PROSECUTOR, HIGH COURT, AMARAVATHI 2. KANCHUBOYINA LAKSHMI, W/O. APPA RAO, AGED ABOUT 36 YEARS, O. D.NO.10-39-10, RAMNAGAR, VISAKHAPATNAM. ...RESPONDENT/COMPLAINANT(S): Petition under Section 437/438/439/482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds 2 SUN, J Crl.P_4872_4875_2023 of Criminal Petition, the High Court pleased to quash the Order dated 22.05.2023 in Crl.M.P No. 1404 of 2023 in C.C No. 127 of 2019 on the file of the II Special Magistrate, Visakhapatnam. receive documents on behalf of the petitioner/. Accused and to pass IA NO: 1 OF 2023 Petition under Section 482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings including appearance of accused in C.C No. 127 of 2019 on the file of the II Special Magistrate, Visakhapatnam, pending disposal of the petition for quashing. Counsel for the Petitioner/accused: 1. K.S.G. PADMAVATHI Counsel for the Respondent/complainant(S): 1. PUBLIC PROSECUTOR (AP) 2. SVK SANDEEP KANCHUBOYINA CRIMINAL PETITION NO: 4875 OF 2023 Between: 1. REGULAGADDA HANUMANTHA RAO, S/O. RAMA LAKSHMANA RAO, AGED ABOUT 59 YEARS, OCC:CLERK/CASHIER/ASSISTANT BRANCH MANAGER, ANDHRA PRADESH GRAMEENA BANK, BHAMINI, SRIKAKULAM. ROAD NO.9, FILM NAGAR, JUBILEE HILLS, HYDERABAD ...PETITIONER/ACCUSED AND 1. THE STATE OF ANDHRA PRADESH, REP. BY PUBLIC PROSECUTOR, HIGH COURT, AMARAVATHI. 3 SUN, J Crl.P_4872_4875_2023 2. KANCHUBOYINA LAKSHMI, W/O. APPA RAO, AGED ABOUT 36 YEARS, R/O. D.NO.10-39-10, RAMNAGAR, VISAKHAPATNAM ...RESPONDENT/COMPLAINANT(S): Petition under Section 437/438/439/482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court pleased to quash the Order dated 22.05.2023 in Crl.M.P No. 1403 of 2023 in C.0 No. 127 of 2019 on the file of the II Special Magistrate, Visakhapatnam, recall of Dw 1 for purpose of marking of documents as Exhibits on behalf of the petitioner/ Accused and to pass IA NO: 1 OF 2023 Petition under Section 482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased pleased to stay all further proceedings including appearance of accused C.0 No. 127 of 2019 on the file of the II Special Magistrate, Visakhapatnam. Pending disposal of the petition for quashing; and pass Counsel for the Petitioner/accused: 1. K.S.G. PADMAVATHI Counsel for the Respondent/complainant(S): 1. PUBLIC PROSECUTOR (AP) 2. SVK SANDEEP KANCHUBOYINA The Court made the following: 4 SUN, J Crl.P_4872_4875_2023 THE HON’BLE SMT. JUSTICE SUNITHA GANDHAM CRIMINAL PETITION Nos. 4872 and 4875 OF 2023 COMMON ORDER: These Criminal Petitions are filed by the petitioner/accused questioning the common order dated 22.05.2023 passed in Crl.M.P. Nos.1403 of 2023 and 1404 of 2023 in C.C. No.127 of 2019 by the learned Second Special Magistrate, Visakhapatnam, whereby the applications filed by the petitioner under Section 311 of the Code of Criminal Procedure, 1973 (Cr.P.C.) were dismissed. 2. The case of the petitioner, in brief, is that respondent No.2 filed a complaint against him under Section 138 of the Negotiable Instruments Act, 1881. During the cross-examination of PW.1, a question was put to the witness with regard to the official address of the petitioner as on 09.04.2017, stated to be the date of execution of the alleged promissory note. In order to establish that he was not working at the address mentioned in the alleged promissory note on the relevant date, the petitioner had earlier filed Crl.M.P. No.6487 of 2022 under Section 91 Cr.P.C., seeking to summon the Branch Manager and Office Attender of A.P. Grameena Vikas Bank, Muralinagar Branch, Visakhapatnam. 3. The said application under Section 91 Cr.P.C. was dismissed on merits. Thereafter, when the matter was posted for advancing arguments, the petitioner filed the present applications seeking recall of his evidence as DW.1, for the purpose of marking the certified copies of the documents obtained from the bank and thereby to establish his defence that, as on the date of the alleged execution of the promissory note, he was not working at the branch/address mentioned therein. 5 SUN, J Crl.P_4872_4875_2023 4. Respondent No.2 opposed the applications contending that they were filed at a belated stage with a view to prolong the proceedings and that the earlier application filed by the petitioner under Section 91 Cr.P.C. had already been dismissed on merits. It was therefore contended that there was no justification for recalling the evidence of DW.1. After considering the rival contentions, the learned Second Special Magistrate dismissed both the applications. 5. Aggrieved thereby, the petitioner has filed the present Criminal Petitions contending that the learned Special Magistrate erred in dismissing the applications on the ground that the petitioner had not elicited the relevant material during the cross-examination of PW.1 and that his earlier application under Section 91 Cr.P.C. had been dismissed. It is further contended that an opportunity ought to have been given to the petitioner to recall his evidence and mark the certified copies of the documents relied upon by him. 6. Heard learned counsel for the petitioner and learned Assistant Public Prosecutor. Perused the material available on record. 7. The material on record discloses that respondent No.2 instituted the complaint under Section 138 of the Negotiable Instruments Act and that, after completion of the examination under Section 313 Cr.P.C., the petitioner entered the witness box as DW.1 and adduced his evidence. Thereafter, when the matter was posted for arguments, the petitioner filed Crl.M.P. No.6487 of 2022 under Section 91 Cr.P.C. seeking to summon the Branch Manager and Office Attender of A.P. Grameena Vikas Bank, Muralinagar Branch, Visakhapatnam. The said application was considered and dismissed on merits. Only thereafter, the petitioner filed the present 6 SUN, J Crl.P_4872_4875_2023 applications under Section 311 Cr.P.C. to recall his own evidence for the purpose of marking certified copies of documents. 8. Section 311 Cr.P.C. confers a wide power upon the Court to summon any person as a witness, examine any person present in Court or recall and re-examine a person whose evidence has already been recorded, at any stage of an inquiry or trial or other proceeding under the Code. However, the power has to be exercised judiciously. The object of the provision is to ensure that the Court arrives at a just decision and that failure of justice does not result from an omission to bring necessary evidence on record. The mere existence of power under Section 311 Cr.P.C. does not confer an absolute right upon a party to have a witness recalled. The Court must be satisfied that the proposed evidence is essential for the just decision of the case and that the application is bona fide and necessary in the circumstances of the case. 9. The Hon’ble Supreme Court in Zahira Habibullah H. Sheikh v. State of Gujarat1, while considering the scope of Section 311 Cr.P.C., held that the determinative factor is whether the evidence sought to be brought on record is essential for the just decision of the case. It was also observed that though the provision confers a very wide power upon the Court, such discretion has to be exercised judiciously and with due application of mind. 10. In the present case, the learned Special Magistrate has assigned reasons for declining to exercise the power under Section 311 Cr.P.C, that the earlier application filed by the petitioner under Section 91 Cr.P.C. for securing the very documents relied upon by him had already been 1 (2006) 3 SCC 374 7 SUN, J Crl.P_4872_4875_2023 considered and dismissed on merits. Further, the petitioner had already been examined under Section 313 Cr.P.C. and had entered the witness box as DW.1. The material placed before the Court also indicates that the petitioner did not elicit the relevant facts from PW.1 during cross- examination and did not put forward, at the appropriate stage, the specific defence which he now seeks to establish by recalling his evidence. 11. It is also significant that the present applications were filed after the petitioner had completed his evidence and the matter had reached the stage of arguments. The documents sought to be marked were admittedly obtained by the petitioner pursuant to the earlier proceedings. Thus, the application does not disclose any subsequent circumstance or unavoidable reason which prevented the petitioner from producing and proving the documents at the appropriate stage. Permitting recall in such circumstances, merely to fill an omission in the evidence after completion of the trial evidence, would result in permitting a party to improve upon or supplement its case at a belated stage. 12. At the same time, the power under Section 311 Cr.P.C. is intended to advance the cause of justice and not to provide a litigant with repeated opportunities to fill up lacunae in the evidence. In the facts and circumstances of the present case, the learned Special Magistrate has exercised the discretion vested in the Court upon consideration of the stage of the proceedings, the earlier order passed on the petition under Section 91 Cr.P.C. and the absence of material showing that the proposed recall was essential for a just decision of the case. No perversity, illegality or material irregularity is shown in the impugned common order warranting interference by this Court in exercise of its jurisdiction. 8 SUN, J Crl.P_4872_4875_2023 13. It is made clear that the observations contained herein are confined to the question whether the petitioner is entitled to recall DW.1 and mark the documents at this stage. The learned trial Court shall adjudicate the complaint on its own merits, uninfluenced by any observation made in this order. 14. In the result and for the foregoing reasons, these Criminal Petitions are dismissed confirming the common order dated 22.05.2023 in Crl.M.P. Nos.1403 of 2023 and 1404 of 2023 in C.C. No.127 of 2019 passed by the learned Second Special Magistrate, Visakhapatnam. As a sequel thereto, the pending miscellaneous petitions, if any, shall stand closed. ___________________ SUNITHA GANDHAM,J Date:18.09.2026 knl