IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 32 of 2010 Date of Decision: 28.04.2010 ______________________________________________ Sh. Dinesh Kumar. ….Petitioner. Versus Sh. Ashok Kumar. ….Respondent. ______________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J Whether approved for reporting?1 ___________________________________________________ For the Petitioner: Mr. Karan Singh Kanwar, Advocate. For the Respondent: Mr. Rajesh Verma, Advocate. ___________________________________________________ Dev Darshan Sud, J. (Oral) This Revision Petition has been filed by the petitioner, who is the accused before the learned Trial Court, facing trial under Section 138 of the Negotiable Instruments Act. The learned Trial Court has rejected his application under Section 311 of the Code of Criminal Procedure for recalling the complainant and put material questions to him which according to the learned counsel pertains to the fact that no agreement was entered into between the parties at all and if such an agreement is made the basis of the complaint, it is forged. The 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 filing of the application was necessitated by the fact that the petitioner has changed his counsel midway during the trial. 2. It is the discretion of the court to allow or disallow an application under Section 311 of the Code of Criminal Procedure for recalling witness for further cross-examination. However, it is the settled principle in law on the manner in which this discretion is to be exercised and that is if the evidence sought to be brought on record is of a nature which goes to the root of the case, permission should be granted. Obviously in the present case, if what the petitioner alleges is about some agreement, which is the basis of the case, permission for recall of the witness would be justified. Without going into the merits of the case, the order passed by learned Judicial Magistrate, Ist Class, Court No. 1, Paonta Sahib is set aside. The application under Section 311 of the Code of Criminal Procedure filed by the petitioner is allowed. It is open to the petitioner to lead additional evidence, but it will be confined to the fact as pleaded in the petition. Needless to say that the complainant shall get an opportunity to rebut such evidence. Revision petition disposed of. All interim order(s) are vacated. April 28, 2010 (Dev Darshan Sud), (KRS) Judge