Case Note & Summary
The petitioner, Shankar s/o Nathuji Khandare, was the original accused in S.C.C. No. 5305/2009 filed by respondent no.2, APT Packaging Limited, under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused issued a cheque for Rs. 2,81,185/- towards payment for goods supplied, which was dishonoured due to insufficient funds. After the accused pleaded not guilty, the complainant examined himself and was cross-examined by the accused. However, the accused filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) to recall the complainant for further cross-examination, claiming that the earlier cross-examination was incomplete because the complainant had left the court without completing his cross-examination. The learned Judicial Magistrate (F.C.), Court No.1, Aurangabad, rejected the application vide order dated 24th July 2012, holding that the accused had already cross-examined the complainant and that the application was filed to delay the proceedings. The accused then filed a criminal writ petition under Article 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging the Magistrate's order. The High Court heard the parties and examined the record. It noted that the accused had cross-examined the complainant on 12th July 2012, but the cross-examination was not completed as the complainant left the court. The accused's application under Section 311 CrPC was filed on 17th July 2012, seeking recall of the complainant for further cross-examination. The High Court observed that Section 311 CrPC confers wide discretion on the court to summon and examine any person at any stage if his evidence appears essential for the just decision of the case. The court held that the Magistrate failed to exercise the jurisdiction vested in him and that the accused's right to cross-examine the complainant is a valuable right. Denying that right would prejudice the accused's defence. The High Court quashed the impugned order and allowed the application, directing the Magistrate to recall the complainant for cross-examination on the same day or on a date convenient to the court. The petition was allowed accordingly.
Headnote
A) Criminal Procedure Code, 1973 - Section 311 - Recall of Witness - Right to Cross-Examine - The accused sought to recall the complainant for cross-examination as the earlier cross-examination was incomplete due to the complainant's absence. The Magistrate rejected the application on the ground that the accused had already cross-examined the complainant. The High Court held that the Magistrate failed to exercise jurisdiction vested in him under Section 311 CrPC, as the provision empowers the court to summon and examine any person at any stage if his evidence appears essential for just decision. The accused's right to cross-examine the complainant is a valuable right and denial thereof would prejudice the defence. The impugned order was quashed and the application was allowed. (Paras 6-8) B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Complaint - Fair Trial - The accused in a cheque dishonour case has a right to cross-examine the complainant to test the veracity of the allegations. The Magistrate's refusal to recall the complainant for cross-examination, despite the accused's earlier cross-examination being incomplete, violated principles of natural justice and fair trial. The High Court directed the Magistrate to recall the complainant for cross-examination on the same day or on a date convenient to the court. (Paras 6-8)
Issue of Consideration
Whether the learned Magistrate erred in rejecting the accused's application under Section 311 CrPC to recall the complainant for cross-examination, thereby denying the accused a fair opportunity to defend himself in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the criminal writ petition, quashed the impugned order dated 24th July 2012 passed by the learned Judicial Magistrate (F.C.), Court No.1, Aurangabad, below Exhibit 47/D in S.C.C. No. 5305/2009, and directed the Magistrate to recall the complainant for cross-examination on the same day or on a date convenient to the court.
Law Points
- Right to recall witness
- Section 311 CrPC
- Section 138 Negotiable Instruments Act
- 1881
- fair trial
- opportunity of defence
- cross-examination
- recall of complainant for cross-examination
- inherent powers of court
- Article 227 Constitution of India
