Case Note & Summary
The petitioner, Shri Pedro Marcel Ferrao, filed a Criminal Writ Petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC) challenging the order dated 10.04.2019 passed by the Judicial Magistrate, First Class, Ponda, which dismissed his application under Section 311 CrPC. The respondent, VPK Urban Co-operative Credit Society Ltd., had filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (the Act) for dishonour of a cheque for Rs. 12,72,447/- dated 20.04.2016 drawn on Canara Bank, Fatorda Branch, Margao, Goa. The petitioner contended that the loan amount sanctioned was only Rs. 6,00,000/- on 23.02.2008, and the dishonoured cheque did not bear the MICR code and was non-negotiable. The petitioner moved an application under Section 311 CrPC seeking recall of the complainant for cross-examination, arguing that the earlier cross-examination was cryptic, casual, and perfunctory, and lacked on several aspects including the validity, legality, and enforceability of the cheque. The trial court dismissed the application. The High Court held that the trial court had clearly ignored the petitioner's case and that the cross-examination was indeed inadequate. The court observed that the power under Section 311 CrPC is wide and must be exercised to secure a just decision. The court set aside the trial court's order and allowed the application, directing the trial court to recall the complainant for cross-examination on the same day or on a date convenient to the court, and to dispose of the complaint expeditiously.
Headnote
A) Criminal Procedure Code - Section 311 CrPC - Recall of Witness - The court has wide discretion to summon or recall any witness at any stage if it is essential for the just decision of the case. The trial court's dismissal of the application was improper as the cross-examination of the complainant was cryptic and perfunctory, and the accused needed to elicit crucial facts regarding the validity and enforceability of the cheque. (Paras 1-10) B) Negotiable Instruments Act, 1881 - Section 138 - Cheque Dishonour - MICR Code - The absence of MICR code on a cheque does not render it non-negotiable per se, but it is a relevant factor in determining the validity of the cheque. The accused must be given an opportunity to cross-examine the complainant on this aspect. (Paras 2-8) C) Criminal Procedure Code - Section 311 CrPC - Just Decision - The power under Section 311 CrPC must be exercised to secure a just decision and to prevent failure of justice. The trial court's order dismissing the application was set aside as it failed to consider that the cross-examination was inadequate and the recall was necessary for a fair trial. (Paras 5-10)
Issue of Consideration
Whether the trial court erred in dismissing the accused's application under Section 311 CrPC for recall of the complainant for cross-examination, and whether the cross-examination conducted was perfunctory and inadequate.
Final Decision
The High Court allowed the writ petition, set aside the order dated 10.04.2019 passed by the Judicial Magistrate, First Class, Ponda, and directed the trial court to recall the complainant for cross-examination on the same day or on a date convenient to the court, and to dispose of the complaint expeditiously.
Law Points
- Section 311 CrPC
- recall of witness
- cross-examination
- Negotiable Instruments Act
- 1881
- Section 138
- cheque dishonour
- MICR code
- non-negotiable cheque
