CRL.M.C. 6715/2026 $~100 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010428462026 + CRL.M.C. 6715/2026 & CRL.M.A. 28062-63/2026 SANJAY SHARMA .....Petitioner Through: Mr. Arvind Kr. Dubey, Mr. Shivam Dixit, Advocates. versus LALMANI ENTERPRISE .....Respondent Through: None. CORAM: HON’BLE MR. JUSTICE PRATEEK JALAN O R D E R % 10.09.2026 1. By way of the present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner assails an order dated 30.07.2026, passed by the Magistrate’s Court, by which an application filed by the petitioner, under Section 311 of the Code of Criminal Procedure, 1973 [“CrPC”], seeking re-examination of the complainant in Complaint Case No. CC NI Act/7513/2021, was dismissed. 2. I have heard Mr. Arvind Kr. Dubey, learned counsel for the petitioner. 3. The subject complaint was instituted in the year 2021 by the respondent herein against the petitioner, under Section 138 of the Negotiable Instruments Act, 1881, in respect of dishonor of a cheque for the sum of Rs. 2 lakhs allegedly drawn by the petitioner in favour of the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/09/2026 at 16:01:44 CRL.M.C. 6715/2026 respondent. 4. During the proceedings in the complaint case, the respondent had filed evidence by way of an affidavit dated 15.09.2021. It is an admitted position that he was examined-in-chief, cross-examined, and subsequently discharged on 15.10.2024. The statements of the present petitioner as DW-1, and another witness called by him, were recorded between 20.03.2025 and 14.10.2025. The matter was thereafter fixed for final arguments on 30.07.2026. 5. Three days prior to the date fixed for final arguments, the petitioner filed an application under Section 311 of CrPC, seeking re-examination of the complainant. In the application, the following grounds were taken: “2. That the applicant/accused has changed his counsel in the present case and the cousin for the applicant has applied for the certified copy of the entire case file as the earlier counsel has abruptly refused to handover the entire court case file to the present counsel. 3. That the Hon’ble court has on last date of hearing pleased to grant the permission to the applicant to take the photo from the Mobile Phone then the present counsel has gone through the content of the same. 4. That the applicant’s counsel has come to know the first time the applicant has met with the Complainant in the year 2020 and on the other hand the Complainant has mentioned in the complaint case that he knows the accused for last 3-4 years. xxxx xxxx xxxx 13. That there is multiple questions, which arise in the present case and if the opportunity for further cross examination is not granted to the Accused/Applicant then the Hon’ble Court will not reach on the just decision in the present case.” The petitioner also sought to set out several questions which, according to him, were required to be asked of the respondent during his cross- examination, but were not asked. 6. The Magistrate’s Court, vide the impugned order dated 30.07.2026, This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/09/2026 at 16:01:44 CRL.M.C. 6715/2026 noted that the petitioner had failed to explain why these questions were not asked when he had the opportunity to cross-examine the respondent, and that the only ground taken by the petitioner in the application was that his counsel has since changed. By the same order, the Court also recorded that final arguments on behalf of the respondent were heard, and the matter was kept for judgment on 21.08.2026. 7. I am, however, informed that judgment has not been delivered, because the petitioner requested an adjournment on the ground that he proposed to challenge the order dated 30.07.2026 by way of the present petition. 8. Mr. Dubey submits that several crucial questions were missed in the respondent’s cross-examination, which would severely prejudice the petitioner’s case at trial. He contends that recall of the respondent for cross-examination is, therefore, required in the interest of justice. 9. Having heard the submissions raised on behalf of the petitioner, I do not find any merit in this case. 10. The petitioner was admittedly given an opportunity to cross- examine the respondent, and cross-examination was, in fact, conducted. The ground of subsequent change of counsel does not commend to me. To accept such an argument would give an opportunity to every recalcitrant or dilatory accused to prolong the trial indefinitely by changing counsel. Particularly when a party has been represented by counsel, that too counsel of their own choice, subsequent allegations of negligence or insufficient cross-examination cannot generally give rise to a ground for recall of the witness under Section 311 CrPC. Further, the power under Section 311 CrPC is to be exercised with due caution and This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/09/2026 at 16:01:44 CRL.M.C. 6715/2026 circumspection. This issue has been dealt with in several judgments of the Supreme Court, including Swapan Kumar Chatterjee v. CBI1, wherein the Supreme Court observed as follows: “11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re- examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”2 11. It has also been held by the Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav3, that change of counsel does not constitute a ground for recall of a witness after a full opportunity of cross- examination has already been provided. The Supreme Court observed: “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 a 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 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. 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.”4 1 (2019) 14 SCC 328 2 Emphasis supplied. 3 (2016) 2 SCC 402 4 Emphasis supplied. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/09/2026 at 16:01:44 CRL.M.C. 6715/2026 A co-ordinate Bench of this Court has also reiterated the same position in Vimal Ghai v. M.P. Sharma5, observing as follows: “16. The newly engaged counsel steps into the shoes of previous counsel and cannot agitate that more questions were required to be put to the witnesses. Merely because the new counsel has been engaged, same would not confer any right to the petitioner to seek recall of complainant/respondent for cross-examination, failing which, there would be chaos and every new counsel engaged by the concerned party would file an application for recall of witnesses on that ground which would result in unnecessary delay in disposal of the case. This Court in CRL.M.C 6451/2025, titled, “Govind Mandalv. State of NCT of Delhi” held that power under Section 311 Cr. P.C. cannot be exercised merely on account of the reason of change in counsel. The relevant paragraph of said order reads as under:— “15 Moreover, the power under Section 311 of the CrPC cannot be exercised at such a belated stage merely on account of change in counsel. Different opinion of a subsequent counsel on how the case is to prosecuted cannot be a legal ground for recalling a witness. If such arguments are allowed, the trial would be a never-ending endeavour since after every few months, a new lawyer with a different strategy would be engaged, who would like to cross examine the witnesses again.”6 12. Having regard to the above, I find no merit in the present petition. Accordingly, the petition, alongwith the pending applications, is dismissed. PRATEEK JALAN, J SEPTEMBER 10, 2026 “B”/SM/ 5 2026 SCC OnLine Del 14. 6 Emphasis supplied. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/09/2026 at 16:01:44