VERDICTUM.

IN

Reserved on : 11.09.2024
Pronounced on : 21.10.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF OCTOBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.4877 OF 2024

BETWEEN:

1. M/S. STEEL ROCKS INC.,

HAVING OFFICE AT:
NO.424, ASG LAYOUT,
20TH MAIN, BANASHANKARI 3RD STAGE,
BENGALURU – 560 061
REPRESENTED BY ITS PROPRIETOR
SRI [Link] KUMAR.

2. SRI [Link] KUMAR,

S/O RAJSHEKAR G.S.,
AGED ABOUT 32 YEARS,
PROPRIETOR
M/[Link] ROCKS,
HAVING OFFICE AT:
NO.424, ASG LAYOUT, 20TH MAIN,
BANASHANKARI 3RD STAGE,
BENGALURU – 560 061.
... PETITIONERS

(BY SRI KARUNASHANKAR K.N., ADVOCATE FOR

SRI SHANKARAPPA S., ADVOCATE)
 [Link]

AND:

1. M/S. BANGALORE ELEVATED

TOLLWAY PVT. LTD., (BETPL)
HAVING ITS MAIN BASE
CAMP BESIDES D-MART,
KIADB ROAD, ELECTRONIC CITY PHASE I,
BENGALURU – 560 100
REPRESENTED BY ITS
AUTHORISED SIGNATORY AND GPA HOLDER
SRI BIJU FRANCIS.

2. SRI BIJU FRANCIS

AGED ABOUT 40 YEARS,
AUTHORISED SIGNATORY
AND GPA HOLDER OF
M/S. BANGALORE ELEVATED
TOLLWAY PVT. LTD., (BETPL)
HAVING ITS MAIN BASE CAMP
BESIDES D-MART,
KIADB ROAD,
ELECTRONIC CITY PHASE I
BENGALURU – 560 100.
... RESPONDENTS

(BY SRI SRIDHAR PRABHU, ADVOCATE )

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF

CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 16.02.2024 IN
[Link].1903/2017 ON THE FILE OF THE HON’BLE IV ADDITIONAL
CIVIL JUDGE AND JFMC AT ANEKAL FOR THE OFFENCE P/U/S 138
OF NI ACT, 1881 .

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 11.09.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
 [Link]

CORAM: THE HON'BLE MR JUSTICE [Link]

CAV ORDER

Petitioners/accused 1 and 2 are before this Court calling in

question an order dated 16-02-2024 passed by the IV Additional

Civil Judge & JMFC, Anekal in [Link].1903 of 2017 registered for

offence punishable under Section 138 of the Negotiable Instruments

Act, 1881 (‘the Act’ for short).

2. Heard Sri K.N. Karunashankar, learned counsel appearing

for petitioners and Sri Sridhar Prabhu, learned counsel appearing

for the respondents.

3. The facts, in brief, germane are as follows:-

1st respondent is the Company and the 2nd respondent is its

General Power of Attorney holder and for the sake of convenience

both will be referred to as either respondent or complainant in this

order. The respondent is the complainant. A complaint comes to be

registered invoking Section 200 of the Cr.P.C., in [Link].319 of

2017 for offence punishable under Section 138 of the Act. The back
 [Link]

drop of registering the complaint is that, the complainant is a Toll

Road Maintenance and Toll Collection Private Company. It entrusted

the work to the petitioners on 28-08-2016 for FOB construction

activities in Hosur – Bangalore Highway road. It is the allegation

that the petitioners failed to commence the work as agreed upon

and the reason projected by the petitioners was demonetization.

The petitioners appear to have sought financial assistance of `25/-

lakhs as advance amount for the work to be completed and had

executed a guarantee document in favour of the complainant.

Incurring financial losses, the work did not get completed.

4. The petitioners are said to have issued a cheque for an

amount of `25/- lakhs on 18-05-2017 towards what they have

borrowed for completion of work. The cheque was presented by the

complainant for its realization. It is returned with an endorsement

”funds insufficient”. This forms the instrument before the concerned

Court. The issue in the lis does not concern merit of the defence of

the petitioners or the allegations of the complainant. The petitioners

filed an application under Section 311 of the Cr.P.C., on

04-01-2024 to recall PW-1 for further cross-examination. This

 [Link]

comes to be rejected by the impugned order. The rejection of the

application has driven these petitioners to this Court in the subject

petition.

5. The learned counsel appearing for the petitioners submits

that PW-1 had been cross-examined on two occasions in the year

2019 when the earlier counsel was on record. He suffered ill-health

and died on 14-04-2023. The present learned counsel for the

petitioners, who has now come on record, has noticed that there is

certain lacuna in the cross-examination. Therefore, the petitioners

have filed the application under Section 311 of the Cr.P.C., to recall

PW-1 for further cross-examination. This ought not to have been

rejected is the submission of the learned counsel for the petitioners.

He would seek to place reliance upon the judgment of the Apex

Court in the case of VARSHA GARG v. STATE OF MADHYA

PRADESH – 2022 SCC OnLine SC 986.

6. Per contra, the learned counsel appearing for the

respondent Sri Sridhar Prabhu would vehemently refute the

submissions. He would contend not once but twice PW-1 has been
 [Link]

cross-examined, may be by the earlier counsel. Five years after

cross-examination, the subject application comes to be filed, on the

change of counsel. Change of counsel cannot be a ground for

allowing the application under Section 311 of the Cr.P.C. The

alleged offence is the one punishable under Section 138 of the Act.

For the last 7 years, the proceedings are pending only on the

ground of seeking unnecessary adjournments by filing applications.

He would submit that application under Section 311 of the Cr.P.C.

cannot be used for the purpose of making the proceedings an abuse

of the process of law.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The afore-narrated facts are not in dispute. The

transaction between the two is a matter of record. The proceedings

are instituted by the respondent in the year 2017. Since then the

proceedings are on. It is also a matter of record that the petitioners

have been given opportunity to cross-examine PW-1 not once but

 [Link]

twice. The subject application comes about for cross-examination of

PW-1 for the third time. A perusal at the order sheet maintained by

the concerned Court would be indicative of the fact that on 4 dates

the case was posted for cross-examination of PW-1 i.e., on

25-06-2019, 23-07-2019, 11-09-2019 and 14-10-2019. The cross-

examination happens on 05-11-2019 and 29-11-2019. Again on

24-02-2021, 28-04-2021, 28-07-2021, 13-10-2021 and

08-12-2021. The witness has been extensively cross-examined by

the counsel who was on record at the relevant point in time. It

appears that PW-1 resigned from the Company on 05-05-2022. The

letter of resignation is appended to the documents produced by the

respondent. Therefore, he is not even available in the country is

what is said.

9. The issue is not with regard to impossibility of securing the

witness for further cross-examination. Whether in the teeth of

aforesaid cross-examination already made on several occasions,

should PW-1 be permitted to be further cross-examined on the

change of counsel who represents the accused? It becomes

necessary to notice the order impugned. It reads as follows:

 [Link]

“COMMON ORDERS ON APPLICATION FILED U/S 311 OF CrPC

BY THE ACCUSED DATED 06-04-2023 AND 4-01-2024 TO
RECALL PW-1 AND TO PERMIT THE ACCUSED TO LEAD DEFENCE
EVIDENCE.

The counsel for accused has filed applications U/s 311 of

Cr.P.C to recall PW-1 for further cross-examination and to
permit the accused to lead defence evidence. The counsel for
the complainant has filed objection to the said application.

It is the contention of the accused that, the case if posted

for the judgment. The senior counsel of the accused is suffering
from liver disease and he is admitted in hospital. Hence, he was
unable to appear before the Court. Proxy counsel has appeared
before the Court, but the court has rejected his prayer and has
taken defence evidence as nil. That the accused intends to lead
defence evidence to disprove the case of the complainant.
Hence, it is very much necessary to allow the application.

Further, the accused has filed another application U/s 311

Cr.P.C praying to recall PW-1 for further cross-examination. The
accused has contended that, he was represented by Sri
[Link] he was suffering from ill-health from 2021
and he has died on 14-04-2023. That in the absence of his
previous counsel the accused was not represented and even the
cross-examination of PW-1 on material documents was not
effectively done and Ex.P1 to 11 was not confronted. Hence, it is
necessary to recall PW-1.

The counsel for the accused has filed objection

contending that, the application is not maintainable. That the
accused without utilizing the time given to him has filed the
present application only with an intention to drag on the
proceedings, hence prayed to reject the application.

Heard and perused the materials available on record. On

perusal of records, it is found that, the counsel for the accused
has cross-examined PW-1 in length on two vacations that to in
the year 2019 and 2021. Thereafter the statement of accused
was recorded U/s 313 of Cr.P.C. and case was posted for
defence evidence. Even after giving enough opportunity the
accused has not lead evidence, hence case was posted for
judgment.
 [Link]

The accused has not given any specific reason as to why

PW-1 has to be recalled. Moreover, he has been cross-
examined on two occasions. Hence, this court is of the opinion
application dated 04-01-2024 filed to recall PW-1 is filed only
with an intention to drag on the proceedings.

Further, the accused has filed another application U/s 311

praying to permit him to lead evidence. No doubt even after
giving enough opportunity accused has not lead evidence, but
even then an opportunity is to be given to the accused to put
forth his defence. Hence, application filed on 06-04-2023 U/s
311 needs to be allowed. Hence, I proceed to pass the following
order:

ORDER

Application filed by the accused U/s 311 of Cr.P.C to recall

PW-1 dated 04-01-2024 is hereby dismissed.

Application filed by the accused U/s 311 of Cr.P.C to lead

defence evidence dated 06-04-2023 is hereby allowed.

The accused is directed to lead evidence without taking

further adjournments.

For defendant evidence as last chance by 02-04-2024.”

The concerned Court rejects the application on the ground that, on

perusal of records it was found that the learned counsel for the

petitioners had cross-examined PW-1 at length on several occasions

in 2019 and 2021 which are all noted hereinabove. The statement

of the accused under Section 313 of the Cr.P.C., was also recorded

and the matter was posted for defence evidence. Even after

granting several opportunities, the accused did not lead evidence.

 [Link]

10

The matter was posted for judgment. The application was filed by

the new counsel who had entered appearance when the matter was

posted for its judgment. Therefore, the concerned Court rejects the

application filed by the petitioners seeking recall of PW-1 for further

cross-examination and allows the application filed on 06-04-2023 to

lead further defence evidence.

10. A perusal at the order sheet, as observed hereinabove, is

indicative of the fact that the learned counsel for the petitioners,

then on record, had extensively cross-examined PW-1. There is no

new material projected by the petitioners even before this Court

necessitating further cross-examination of PW-1. The petitioners

have placed heavy reliance on the judgment of the Apex Court in

the case of VARSHA GARG supra. There is no qualm about the

principle so laid down by the Apex Court in interpreting the purport

of Section 311 of the Cr.P.C. That was in the fact circumstance. In

the case at hand, it is an issue which is of 7 years vintage. It is not

a case where PW-1 has not been cross-examined at all. He has

been extensively cross-examined and on 4 dates the petitioners

have been granted opportunity to further cross-examine PW-1.

 [Link]

11

Therefore, the said judgment in the case of VARSHA GARG would

not become applicable to the case of the petitioners.

11. It becomes apposite to refer to the judgment of the Apex

Court in the case of RAJARAM PRASAD YADAV v. STATE OF

BIHAR1 wherein it is held as follows:

“…. …. ….

17. From a conspectus consideration of the above

decisions, while dealing with an application under Section 311
CrPC read along with Section 138 of the Evidence Act, we feel
the following principles will have to be borne in mind by the
courts:

17.1. Whether the court is right in thinking that the new

evidence is needed by it? Whether the evidence sought to be led
in under Section 311 is noted by the court for a just decision of
a case?

17.2. The exercise of the widest discretionary

power under Section 311 CrPC should ensure that the
judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts, as
thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to

be essential to the just decision of the case, it is the power of
the court to summon and examine or recall and re-examine any
such person.

17.4. The exercise of power under Section 311 CrPC

should be resorted to only with the object of finding out the
truth or obtaining proper proof for such facts, which will lead to
a just and correct decision of the case.

1
(2013) 14 SCC 461
 [Link]

12

17.5. The exercise of the said power cannot be dubbed

as filling in a lacuna in a prosecution case, unless the facts and
circumstances of the case make it apparent that the exercise of
power by the court would result in causing serious prejudice to
the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised

judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in every

respect essential to examine such a witness or to recall him for
further examination in order to arrive at a just decision of the
case.

17.8. The object of Section 311 CrPC simultaneously

imposes a duty on the court to determine the truth and to
render a just decision.

17.9. The court arrives at the conclusion that additional

evidence is necessary, not because it would be impossible to
pronounce the judgment without it, but because there would be
a failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense

should be the safeguard, while exercising the discretion. The
court should bear in mind that no party in a trial can be
foreclosed from correcting errors and that if proper evidence
was not adduced or a relevant material was not brought on
record due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that

after all the trial is basically for the prisoners and the court
should afford an opportunity to them in the fairest manner
possible. In that parity of reasoning, it would be safe to err in
favour of the accused getting an opportunity rather than
protecting the prosecution against possible prejudice at the cost
of the accused. The court should bear in mind that improper or
capricious exercise of such a discretionary power, may lead to
undesirable results.
 [Link]

13

17.12. The additional evidence must not be received as a

disguise or to change the nature of the case against any of the
party.

17.13. The power must be exercised keeping in mind

that the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 CrPC must

therefore, be invoked by the court only in order to meet
the ends of justice for strong and valid reasons and the
same must be exercised with care, caution and
circumspection. The court should bear in mind that fair
trial entails the interest of the accused, the victim and the
society and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured
being a constitutional goal, as well as a human right.”

(Emphasis supplied)

Again, the Apex Court in the case of STATE (NCT OF DELHI) v.

SHIV KUMAR YADAV2, has held as follows:

“…. …. ….

27. It is difficult to approve the view taken by the High

Court. Undoubtedly, fair trial is the objective and it is the duty
of the court to ensure such fairness. Width of power under
Section 311 CrPC is beyond any doubt. Not a single specific
reason has been assigned by the High Court as to how in the
present case recall of as many as 13 witnesses was necessary
as directed in the impugned order. No fault has been found with
the reasoning of the order of the trial court. The High Court
rejected on merits the only two reasons pressed before it that
the trial was hurried and the counsel was not competent. In the
face of rejecting these grounds, without considering the
hardship to the witnesses, undue delay in the trial, and without
any other cogent reason, allowing recall merely on the

2
(2016) 2 SCC 402
 [Link]

14

observation that it is only the accused who will suffer by the

delay as he was in custody could, in the circumstances, be
hardly accepted as valid or serving the ends of justice. It is not
only matter of delay but also of harassment for the witnesses to
be recalled which could not be justified on the ground that the
accused was in custody and that he would only suffer by
prolonging of the proceedings. 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.

28. It will also be pertinent to mention that power of

judicial superintendence under Article 227 of the Constitution
and under Section 482 CrPC has to be exercised sparingly when
there is patent error or gross injustice in the view taken by a
subordinate court [Jasbir Singh v. State of Punjab, (2006) 8
SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to
this effect has to be supported by reasons. In the present case,
the High Court has allowed the prayer of the accused, even
while finding no error in the view taken by the trial court,
merely by saying that exercise of power was required for
granting fair and proper opportunity to the accused. No reasons
have been recorded in support of this observation. On the
contrary, the view taken by the trial court rejecting the stand of
the accused has been affirmed. Thus, the conclusion appears to
be inconsistent with the reasons in the impugned order.

29. We may now sum up our reasons for disapproving

the view of the High Court in the present case:
 [Link]

15

(i) The trial court and the High Court held that the
accused had appointed counsel of his choice. He was facing trial
in other cases also. The earlier counsel were given due
opportunity and had duly conducted cross-examination. They
were under no handicap;

(ii) No finding could be recorded that the counsel

appointed by the accused were incompetent particularly at the
back of such counsel;

(iii) Expeditious trial in a heinous offence as is alleged in

the present case is in the interests of justice;

(iv) The trial court as well as the High Court rejected the
reasons for recall of the witnesses;

(v) The Court has to keep in mind not only the need for
giving fair opportunity to the accused but also the need for
ensuring that the victim of the crime is not unduly harassed;

(vi) Mere fact that the accused was in custody and that
he will suffer by the delay could be no consideration for allowing
recall of witnesses, particularly at the fag end of the trial;

(vii) Mere change of counsel cannot be ground to

recall the witnesses;

(viii) There is no basis for holding that any prejudice will

be caused to the accused unless the witnesses are recalled;

(ix) The High Court has not rejected the reasons

given by the trial court nor given any justification for
permitting recall of the witnesses except for making
general observations that recall was necessary for
ensuring fair trial. This observation is contrary to the
reasoning of the High Court in dealing with the grounds
for recall i.e. denial of fair opportunity on account of
incompetence of earlier counsel or on account of
expeditious proceedings;

(x) There is neither any patent error in the

approach adopted by the trial court rejecting the prayer
 [Link]

16

for recall nor any clear injustice if such prayer is not

granted.”
(Emphasis supplied)

In yet another judgment rendered in RATANLAL v. PRAHLAD

JAT3, the Apex Court has held as follows:

“…. …. ….

16. That brings us to the next question as to whether the

High Court was justified in setting aside the order of the
Sessions Judge and allowing the application filed by PWs 4 and
5 for their re-examination. For ready reference Section 311
CrPC is as under:

“311. Power to summon material witness, or

examine person present.—Any court may, at any stage
of any inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the
court shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be essential
to the just decision of the case.”

17. In order to enable the court to find out the truth

and render a just decision, the salutary provisions of
Section 311 are enacted whereunder any court by
exercising its discretionary authority at any stage of
inquiry, trial or other proceeding can summon any person
as witness or examine any person in attendance though
not summoned as a witness or recall or re-examine any
person already examined who are expected to be able to
throw light upon the matter in dispute. The object of the
provision as a whole is to do justice not only from the
point of view of the accused and the prosecution but also
from the point of view of an orderly society. This power is
to be exercised only for strong and valid reasons and it
should be exercised with caution and circumspection.

3
(2017) 9 SCC 340
 [Link]

17

Recall is not a matter of course and the discretion given

to the court has to be exercised judicially to prevent
failure of justice. Therefore, the reasons for exercising
this power should be spelt out in the order.”

(Emphasis supplied)

12. On a coalesce 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 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

preset in the case at hand. It is not a case where PW-1 was not

cross-examined or further cross-examined. It has been done

extensively. It is not the case where the application was filed at an

earlier point in time. When the case was posted for its judgment,
 [Link]

18

the subject application is 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 filing of application. The Apex Court has held that change of

counsel will not be a ground to allow the application under Section

311 of the Cr.P.C.

13. Therefore, finding no merit in the petition and no warrant

of interference with the order passed by the concerned Court, I

proceed to pass the following:

ORDER

(i) The Criminal Petition stands rejected.

(ii) Since the case is of 7 years vintage, I deem it

appropriate to direct the concerned Court to

conclude the proceedings within an outer limit of 4

four months from the date of receipt of a copy of this

order.
 [Link]

19

Interim order of any kind operating shall stand dissolved.

Sd/-
(M. NAGAPRASANNA)
JUDGE

bkp
CT:MJ