Case Note & Summary
The petitioner, Kanhaiyalal s/o Khayaldas Kewalramani, was the original accused in S.T.C. No. 164 of 2006 pending before the Judicial Magistrate, First Class, Nandurbar. The respondent, Anil s/o Khupchand Gurubakshani, filed a complaint against the petitioner for offences punishable under Section 138 of the Negotiable Instruments Act, 1881, and Section 420 of the Indian Penal Code, 1860. During the trial, the complainant was examined-in-chief and was to be cross-examined on 18.8.2009. On that date, the advocate for the accused was absent, and the accused himself was present. The Magistrate recorded that the advocate was absent and proceeded to close the cross-examination, rejecting the accused's application (Exh.92) to recall the complainant for cross-examination. The accused then filed a criminal writ petition before the Bombay High Court challenging the Magistrate's order. The High Court considered the facts and noted that the accused was not at fault for the advocate's absence. The court held that the right to cross-examine is a fundamental aspect of a fair trial and that the accused should not suffer due to the negligence of his advocate. The court set aside the Magistrate's order and allowed the recall of the complainant for cross-examination, subject to the accused paying costs of Rs. 500 to the complainant. The court directed the Magistrate to fix a date for cross-examination and to proceed with the trial thereafter.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Fair Trial - The accused sought recall of the complainant for cross-examination as his advocate was absent on the earlier date, resulting in no cross-examination on crucial aspects. The Magistrate rejected the application. The High Court held that to ensure a fair trial and prevent prejudice, the accused must be given an opportunity to cross-examine the complainant on material points. The order rejecting recall was set aside subject to payment of costs of Rs. 500 to the complainant. (Paras 1-6) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Cross-Examination - The complainant filed a complaint under Section 138 of the NI Act and Section 420 IPC. The accused's advocate was absent on the date fixed for cross-examination, leading to no cross-examination. The High Court emphasized that the right to cross-examine is a vital part of a fair trial and cannot be denied merely due to the advocate's absence, especially when the accused is not at fault. (Paras 2-5)
Issue of Consideration
Whether the accused is entitled to recall the complainant for cross-examination when the earlier opportunity was not effectively utilized due to the absence of the accused's advocate?
Final Decision
The High Court allowed the writ petition, set aside the order dated 18.8.2009 passed by the Judicial Magistrate, First Class, Nandurbar, and directed the Magistrate to recall the complainant for cross-examination on a date to be fixed, subject to the accused paying costs of Rs. 500 to the complainant.
Law Points
- Right to cross-examine
- fair trial
- recall of witness
- Section 138 Negotiable Instruments Act
- 1881
- Section 311 CrPC
- Section 420 IPC
