Case Note & Summary
The petitioner, Madan Amlokchand Mutha, filed a writ petition challenging the judgment and order dated 12.12.2003 passed by the learned Additional Sessions Judge, Pune in Criminal Revision Application No. 499 of 2003, which confirmed the order dated 23.07.2003 passed by the learned Judicial Magistrate First Class, Pune rejecting the petitioner's application (Exhibit 51) in Criminal Case No. 1566 of 1993. The background of the case is that respondent No.1, Arvind Ambalal Shah, filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 against the petitioner for dishonour of two cheques of Rs.7,00,000/- and Rs.4,00,000/- dated 15.02.1992 and 06.09.1992 respectively, issued towards discharge of a liability of Rs.12,00,000/- for construction work. The cheques were dishonoured with the remark 'funds insufficient'. After statutory notice, the petitioner failed to pay, leading to the complaint. The complainant's examination-in-chief was recorded on 22.04.1993. The petitioner filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) on 23.07.2003, i.e., after about 10 years, seeking to recall the complainant for cross-examination. The Magistrate rejected the application on the ground of inordinate delay and lack of sufficient cause. The revisional court upheld this order. The High Court, in the present writ petition, examined whether the courts below erred in rejecting the application. The court noted that the petitioner had ample opportunity to cross-examine the complainant at the time of examination-in-chief but chose not to do so. The application was filed after a delay of about 10 years without any plausible explanation. The court held that allowing such a belated application would cause prejudice to the complainant and defeat the ends of justice. The court also observed that the petitioner had not shown any change in circumstances or any new material that warranted recall. The court dismissed the petition, upholding the orders of the courts below.
Headnote
A) Criminal Procedure Code - Section 311 - Recall of Witness - Delay - The court considered whether an application to recall a witness for cross-examination filed after a delay of about 10 years from the date of examination-in-chief should be allowed. The court held that such a belated application, without sufficient explanation for the delay, cannot be entertained as it would cause prejudice to the other side and defeat the ends of justice. (Paras 1-16) B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Complaint - The petitioner was prosecuted for dishonour of cheques issued towards discharge of liability. The complainant's examination-in-chief was recorded in 1993, but the petitioner sought to recall him in 2003. The court held that the petitioner had ample opportunity to cross-examine earlier and the delay was not condonable. (Paras 3-16)
Issue of Consideration
Whether the courts below erred in rejecting the petitioner's application under Section 311 CrPC to recall the complainant for cross-examination, filed after a delay of about 10 years from the date of the complainant's examination-in-chief.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the courts below rejecting the application under Section 311 CrPC.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 311 CrPC
- recall of witness
- delay condonation
- abuse of process
