Sandeep Mishra vs Abhishek Goyal, S/o Premchand Goyal

Alok verma, J. - This application filed under Section 482 Criminal Procedure Code is directed against the order passed by the leaned Judicial Magistrate First Class, Indore dated 11.03.2015 in criminal case no.33311/2008 and the order passed by the revisional Court in Criminal revision no. 213/15 dated 14.05.2015.

The relevant facts for disposal of this revision are that the present applicant is facing trial before the learned Judicial Magistrate First Class under Section 138 of the Negotiable Instruments Act.

According to the applicant this complaint was filed by uncle of the complainant Mahesh Agrawal. There are two complaints filed on the basis of same promissory note and stamp paper dated 26.11.2007 and on the basis of two cheques which have consecutive numbers.

The applicant filed an application under Section 311 Criminal Procedure Code for recalling the complainant for further cross - examination, as according to him no questions were asked from the complainant as to why two different complaints were filed on the basis of same promissory note.

Learned Judicial Magistrate First Class proceeded to dismiss the application and the revision filed against this order was dismissed by the learned XI Additional Sessions Judge, on the basis of the principles laid down in the case of Sethuraman v. Raja Manikam (2009) 5 SCC 153 in which the Hon''ble Apex Court held that revision against the order disposing of application under Section 311 Criminal Procedure Code is not maintainable. Accordingly, after failing to get any relief in revision, this application under Section 482 Criminal Procedure Code is filed.

Learned counsel for the applicant submits that under the provisions of Section 311 Criminal Procedure Code, respondent cannot be allowed to fill the lacuna in his case. Only in case of severe injustice, additional evidence may be allowed.

Learned trial Court observed in the impugned order that the fact that both the complaints were filed on the basis of same set of documents was known to the applicant/accused and it was not a subsequent event and therefore dismissed the application.

Learned counsel for the applicant cited judgment of Hon''ble Apex Court in the case of Vijay Kumar v. State of Uttar Pradesh (2011) 8 SCC 136, Shailendra Kumar v. State of Bihar (2002) 1 SCC 655, Natasha Singh v. Centrial Bureau of Investigation (2013) 5 SCC 741. The principles laid down in these cases are that the issue to be considered is whether the evidence adduced is relevant or not.

Per contra, learned counsel for the respondent relies upon a judgment of Hon''ble the Apex Court in the case of Advocate General v. Shiv Kumar Yadav (2015) 4 CCSC 2164 (SC). In this case, it was held that recalling the witnesses, observing merely that, for ensuring fair trial such recalling of the witnesses is necessary, is not enough. There should be some relevant ground to justify recalling of the witnesses.

In the present case, it is rightly observed by the learned trial Court that the accused was knowing the fact that both the complaints were filed on same set of documents and on the basis of cheques having consecutive numbers, full opportunity was granted to the accused for cross examining the complainant and therefore, he rightly dismissed the application. In the considered opinion of this Court discretion exercised by the learned lower Court does not suffer from any infirmity, illegality or irrationality.

No interference is called for and therefore, this petition being devoid of merits is dismissed.

C.C. as per rules.