Case Note & Summary
The petitioner, original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed a Criminal Writ Petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench. The accused challenged two orders passed by the Judicial Magistrate First Class, Chopada in Criminal Case No.1792/2005: (i) the order dated 19.12.2009 below Exhibit 22, which was a 'No Cross' order, and (ii) the order dated 4.2.2010 below Exhibit 73, which rejected the application for recall of the complainant's witness for cross-examination. The accused had been given an opportunity to cross-examine the complainant's witness on 19.12.2009, subject to payment of costs of Rs.500, but he failed to pay the costs and the witness was discharged. Subsequently, the accused filed an application for recall of the witness, which was rejected by the Magistrate. The High Court held that the right to cross-examination is a valuable right and cannot be denied without giving an opportunity to the accused to explain the default. The court observed that the Magistrate had not issued any notice to the accused before passing the 'No Cross' order, and the rejection of the recall application was mechanical. The court set aside both orders and directed the Magistrate to recall the complainant's witness for cross-examination, subject to payment of costs of Rs.1,000 to the complainant, and to decide the matter expeditiously.
Headnote
A) Criminal Procedure - Right to Cross-Examination - Denial of Opportunity - Section 311 CrPC, Articles 226, 227 Constitution of India - The accused was denied the right to cross-examine the complainant's witness by a 'No Cross' order passed without giving an opportunity to explain the default in payment of costs - Held that the right to cross-examination is a valuable right and cannot be extinguished without affording an opportunity to the accused to show cause (Paras 3-6). B) Negotiable Instruments Act - Dishonour of Cheque - Recall of Witness - Section 138 Negotiable Instruments Act, 1881 - The accused sought recall of the complainant's witness for cross-examination after the 'No Cross' order was passed - The Magistrate rejected the application without considering the merits - Held that the accused must be given an opportunity to cross-examine the witness, subject to payment of costs (Paras 3-6).
Issue of Consideration
Whether the learned Magistrate was justified in passing the 'No Cross' order and refusing to recall the complainant's witness for cross-examination without giving an opportunity to the accused to explain the default in payment of costs.
Final Decision
The High Court allowed the petition, set aside the order dated 19.12.2009 below Exhibit 22 ('No Cross' order) and the order dated 4.2.2010 below Exhibit 73 (rejection of recall application). The court directed the JMFC, Chopada to recall the complainant's witness for cross-examination, subject to payment of costs of Rs.1,000 to the complainant, and to decide the matter expeditiously.
Law Points
- Right to cross-examination is a valuable right
- cannot be denied without giving opportunity
- Section 138 Negotiable Instruments Act
- 1881
- Section 311 CrPC
- Articles 226 and 227 of Constitution of India
