Case Note & Summary
The petitioner, Nandkumar Rajkumar Harane, was the original accused in a complaint filed by respondent Vishwas Vilasrao Kshirsagar under Section 138 of the Negotiable Instruments Act, 1881, pending before the Judicial Magistrate (First Class), 3rd Court, Latur. The complaint alleged that the accused borrowed Rs. 60,000 as hand loan and issued a cheque which was dishonoured due to insufficient funds. During the trial, the complainant's evidence was recorded on 11-6-2010 in the absence of the accused and his advocate, as the accused was not present and his advocate was on strike. The accused filed an application below Exhibit 48 under Section 311 of the Code of Criminal Procedure, 1973, seeking to recall the complainant for cross-examination, on the ground that he was deprived of the opportunity to cross-examine. The trial court rejected the application on 11-6-2010, and the revisional court (Additional Sessions Judge, Latur) confirmed the order on 7-1-2011 in Criminal Revision No. 114 of 2010. The accused then filed the present criminal writ petition under Article 227 of the Constitution of India. The High Court framed the issue of whether the accused's right to cross-examine was violated. The court noted that the accused was not present and his advocate was on strike, and the trial court proceeded to record the complainant's evidence without giving the accused an opportunity. The court held that the accused has a fundamental right to cross-examine the complainant, and denial thereof is a violation of principles of natural justice. The court allowed the petition, quashed the impugned orders, and directed the trial court to allow the application for recall, subject to payment of costs of Rs. 500 to the complainant. The court also directed the trial court to expedite the trial and dispose of the complaint within six months.
Headnote
A) Criminal Procedure Code - Recall of Witness - Section 311 CrPC - Right to Cross-Examination - The accused filed an application under Section 311 CrPC to recall the complainant for cross-examination as the complainant's evidence was recorded in the absence of the accused and his counsel, depriving the accused of the opportunity to cross-examine. The trial court and revisional court rejected the application. The High Court held that the accused has a fundamental right to cross-examine the complainant, and denial thereof violates principles of natural justice. The impugned orders were quashed, and the application for recall was allowed, subject to payment of costs of Rs. 500 to the complainant. (Paras 5-10)
Issue of Consideration
Whether the accused's application to recall the complainant for cross-examination ought to have been allowed when the accused was not given an opportunity to cross-examine the complainant at the initial stage due to the complainant's evidence being recorded in the absence of the accused?
Final Decision
The High Court allowed the criminal writ petition, quashed and set aside the impugned order dated 7-1-2011 passed by the Additional Sessions Judge, Latur, and the order dated 11-6-2010 passed by the Judicial Magistrate (First Class), 5th Court, Latur, below Exhibit 48 in S.T.C.C. No. 1734/2009. The application below Exhibit 48 filed by the accused was allowed, subject to payment of costs of Rs. 500 to the complainant. The trial court was directed to expedite the trial and dispose of the complaint within six months.
Law Points
- Right to cross-examination
- principles of natural justice
- recall of witness
- Section 138 Negotiable Instruments Act
- 1881
- Section 311 CrPC
- opportunity of hearing
Case Details
2011 LawText (BOM) (08) 8
Criminal Writ Petition No. 190 of 2011
Mr. S.P. Katneshwarkar (for petitioner), Mr. B.V. Thombre (for respondent no.1), Mr. D.R. Korde (Additional Public Prosecutor for respondent no.2)
Nandkumar s/o. Rajkumar Harane
Vishwas s/o. Vilasrao Kshirsagar, The State of Maharashtra
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution of India challenging orders rejecting application to recall complainant for cross-examination in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner (original accused) sought quashing of the impugned order dated 7-1-2011 passed by the Additional Sessions Judge, Latur, confirming the order dated 11-6-2010 passed by the Judicial Magistrate (First Class), 5th Court, Latur, rejecting his application below Exhibit 48 to recall the complainant for cross-examination, and sought allowance of that application.
Filing Reason
The accused was not present and his advocate was on strike when the complainant's evidence was recorded, depriving him of the opportunity to cross-examine the complainant.
Previous Decisions
The trial court (Judicial Magistrate, 5th Court, Latur) rejected the application below Exhibit 48 on 11-6-2010. The revisional court (Additional Sessions Judge, Latur) confirmed that order on 7-1-2011 in Criminal Revision No. 114 of 2010.
Issues
Whether the accused's application to recall the complainant for cross-examination ought to have been allowed when the accused was not given an opportunity to cross-examine the complainant at the initial stage due to the complainant's evidence being recorded in the absence of the accused?
Submissions/Arguments
The petitioner argued that the complainant's evidence was recorded in the absence of the accused and his advocate, as the accused was not present and his advocate was on strike, thereby depriving the accused of the right to cross-examine the complainant, which is a violation of principles of natural justice.
The respondents opposed the petition, but the judgment does not detail their specific arguments.
Ratio Decidendi
The accused has a fundamental right to cross-examine the complainant, and denial of that opportunity, especially when the accused was absent and his advocate was on strike, violates principles of natural justice. The court must exercise its discretion under Section 311 CrPC to recall a witness if necessary for a just decision and to prevent failure of justice.
Judgment Excerpts
It is manifestly clear that the accused was not present and his Advocate was on strike, and the learned Magistrate proceeded to record the evidence of the complainant in the absence of the accused and his Advocate, and thereby the accused was deprived of the opportunity to cross-examine the complainant.
The accused has a fundamental right to cross-examine the complainant and the denial thereof amounts to violation of principles of natural justice.
Hence, the impugned orders deserve to be quashed and set aside and the application below Exhibit 48 deserves to be allowed.
Procedural History
The complainant filed S.T.C.C. No. 1734/2009 under Section 138 of the Negotiable Instruments Act, 1881, before the Judicial Magistrate (First Class), 3rd Court, Latur. On 11-6-2010, the complainant's evidence was recorded in the absence of the accused and his advocate. The accused filed an application below Exhibit 48 under Section 311 CrPC to recall the complainant for cross-examination, which was rejected on 11-6-2010. The accused filed Criminal Revision No. 114 of 2010 before the Additional Sessions Judge, Latur, which was dismissed on 7-1-2011. The accused then filed the present Criminal Writ Petition No. 190 of 2011 before the Bombay High Court, Aurangabad Bench, which was allowed on 4-8-2011.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 311
- Constitution of India: 227
