Case Note & Summary
The petitioner, Tukaram Salunkhe, filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Sahebrao Salunkhe, in the Court of Chief Judicial Magistrate, Aurangabad, registered as S.C.C. No. 2625/2009. The petitioner tendered an affidavit (Exhibit 14) as his examination-in-chief and was cross-examined at length. After cross-examination, he filed an application (Exhibit 30) for production of documents, namely income tax returns and twelve purchase bills, which the trial court allowed in the interest of justice. Subsequently, the petitioner filed another application (Exhibit 31) seeking his re-examination to give evidence in respect of those documents. The respondent opposed the application, and the trial court rejected it on 08-04-2011. The petitioner challenged this order in the High Court. The High Court observed that since the documents were allowed to be produced, the petitioner must be given an opportunity to prove them. The court held that the trial court's order was not sustainable and set it aside, allowing the application for recall and re-examination. The High Court directed the trial court to permit the petitioner to be recalled and re-examined in respect of the documents produced vide Exhibit 30, and to proceed with the trial in accordance with law.
Headnote
A) Criminal Procedure - Recall of Witness - Re-examination - Section 138 Negotiable Instruments Act, 1881 - The petitioner/complainant sought recall and re-examination to prove documents (income tax returns and purchase bills) that were allowed to be produced after his cross-examination. The trial court rejected the application. The High Court held that the trial court's order was not sustainable as the documents were allowed to be produced in the interest of justice, and the complainant must be given an opportunity to prove them. The court set aside the impugned order and allowed the application for recall and re-examination. (Paras 3-6)
Issue of Consideration
Whether the trial court was justified in rejecting the application for recall and re-examination of the complainant to prove documents that were allowed to be produced after his cross-examination was over.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 08-04-2011, and directed the trial court to permit the petitioner to be recalled and re-examined in respect of the documents produced vide application (Exhibit 30). The trial court was directed to proceed with the trial in accordance with law.
Law Points
- Recall of witness
- re-examination
- additional evidence
- Negotiable Instruments Act
- Section 138
- criminal trial
- fair opportunity
- interest of justice
Case Details
2012 LawText (BOM) (01) 10
Criminal Writ Petition No. 726 of 2011
F.R. Tandale for petitioner, S.D. Hiwarekar for respondent
Tukaram S/o Mahipat Salunkhe
Sahebrao S/o Kashinath Salunkhe
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Nature of Litigation
Criminal writ petition challenging order rejecting application for recall and re-examination of complainant in a complaint under Section 138 of the Negotiable Instruments Act.
Remedy Sought
Petitioner sought setting aside of the order dated 08-04-2011 rejecting his application (Exhibit 31) for recall and re-examination to prove documents produced after cross-examination.
Filing Reason
The trial court rejected the petitioner's application for recall and re-examination to prove documents that were allowed to be produced after his cross-examination was over.
Previous Decisions
The trial court allowed production of documents (Exhibit 30) but rejected the application for recall and re-examination (Exhibit 31).
Issues
Whether the trial court was justified in rejecting the application for recall and re-examination of the complainant to prove documents that were allowed to be produced after his cross-examination was over.
Submissions/Arguments
Petitioner contended that his additional evidence was necessary to prove the documents evincing business transactions and acquaintance between the parties, and it would not change the nature of the case.
Respondent countered the application with a say dated 02-04-2011.
Ratio Decidendi
When documents are allowed to be produced in the interest of justice, the witness must be given an opportunity to prove them. Rejection of an application for recall and re-examination to prove such documents is not sustainable.
Judgment Excerpts
Sagacity of the order dated 08-04-2011 rejecting the application (Exhibit 31) for permission to recall and re-examine the complainant for adducing the additional evidence in S.C.C. No. 2625/2009, passed by learned 13th Judicial Magistrate, First Class, Aurangabad is in question in the present petition.
The petitioner in his application (Exhibit 31) contended that his additional evidence is necessary to prove the said documents evincing the business transactions between him and the respondent, and consequent acquaintance between the two since long prior to the transaction in question, and that it would not change the nature of the case.
Procedural History
The petitioner filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881, which was registered as S.C.C. No. 2625/2009. After the petitioner's cross-examination, he filed an application (Exhibit 30) for production of documents, which was allowed. He then filed an application (Exhibit 31) for recall and re-examination to prove those documents, which was rejected by the trial court on 08-04-2011. The petitioner challenged this order in the High Court by way of Criminal Writ Petition No. 726 of 2011.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
