Case Note & Summary
The petitioner, Karim Hasan Patel, was the accused in a complaint filed by respondent No. 2, Nasir Haji Mohammad Shaikh, under Section 138 of the Negotiable Instruments Act, 1881, alleging dishonour of a cheque for Rs. 1,72,300/- issued towards payment for goods. The complaint was registered as S.T.C. No. 720/2005 before the Judicial Magistrate First Class, Shrirampur. The complainant filed his examination-in-chief by affidavit (Exhibit 14) on 06-12-2006 and was cross-examined. After cross-examination, he moved an application (Exhibit 51) seeking permission to adduce additional evidence by way of an additional affidavit, stating that certain matters were left out due to inadvertence and that no new case was being made out. The petitioner opposed the application, contending that it was an attempt to fill lacunae after the defence had been revealed. The Magistrate allowed the application, holding that the additional evidence was essential for a just decision. The petitioner challenged this order in the High Court. The High Court, after hearing arguments, held that the Magistrate's order was proper as the petitioner would have an opportunity to cross-examine the complainant on the additional evidence, and no prejudice would be caused. The petition was dismissed, and the Magistrate was directed to expedite the trial.
Headnote
A) Criminal Procedure Code - Additional Evidence - Section 311 CrPC - Power to summon material witness or examine person present - The Magistrate allowed the complainant to file additional affidavit after cross-examination, holding it essential for just decision - The High Court upheld the order, observing that the accused would get an opportunity to cross-examine the complainant on the additional evidence, thus no prejudice caused (Paras 3-7).
Issue of Consideration
Whether the Magistrate was justified in allowing the complainant to adduce additional evidence after his cross-examination was over in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court dismissed the petition, upholding the Magistrate's order allowing additional evidence, and directed the Magistrate to expedite the trial.
Law Points
- Additional evidence can be allowed to fill lacuna if essential for just decision
- opportunity for cross-examination must be given
- no prejudice if accused can rebut
Case Details
2012 LawText (BOM) (01) 9
Criminal Writ Petition No. 277 of 2010
R.R. Karpe for petitioner, N.B. Patil A.P.P. for respondent/State, P.P. Khandale Patil for respondent No. 2
The State of Maharashtra, Nasir Haji Mohammad Shaikh
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Nature of Litigation
Criminal writ petition challenging order allowing additional evidence in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought to quash the Magistrate's order dated 02-03-2010 allowing the complainant to adduce additional evidence.
Filing Reason
The petitioner contended that the complainant was trying to fill lacunae after cross-examination, causing prejudice.
Previous Decisions
The Judicial Magistrate First Class, Shrirampur, allowed the application (Exhibit 51) for additional evidence on 02-03-2010.
Issues
Whether the Magistrate's order allowing additional evidence after cross-examination of the complainant was justified.
Whether the additional evidence would cause prejudice to the accused.
Submissions/Arguments
Petitioner argued that the complainant was trying to fill lacuna after the accused had opened his cards on completion of cross-examination.
Respondent No. 2 argued that additional evidence was essential for just decision and no new case was being made out.
Ratio Decidendi
The court held that allowing additional evidence after cross-examination does not cause prejudice if the accused is given an opportunity to cross-examine on the additional evidence, and such evidence is essential for just decision.
Judgment Excerpts
The respondent No. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1872, against the petitioner, thereby alleging that the petitioner failed and neglected to make payment of Rs. 1,72,300/- due to him upon dishonour of cheque for the said amount issued by the petitioner towards payment of the price of the goods purchased from time to time.
Learned Judicial Magistrate, First Class, Shrirampur after hearing the parties and on considering the evidence already adduced vis-a-vis the complaint and the law on the subject held that the additional evidence of the complainant was essential for just decision of the case and allowed the application (Exhibit 51).
Procedural History
Complaint under Section 138 NI Act filed in 2005. Complainant filed examination-in-chief by affidavit on 06-12-2006. After cross-examination, complainant moved application (Exhibit 51) for additional evidence on 02-03-2010, which was allowed by the Magistrate. Petitioner filed Criminal Writ Petition No. 277 of 2010 challenging that order. High Court dismissed the petition on 20-01-2012.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 311
