Case Note & Summary
The petitioner, Anil Baburao Chalke, was the accused in SCC No. 1331 of 2016 filed by the first respondent, M/s. Meenamani Ganga Builder LLP, under Section 138 of the Negotiable Instruments Act, 1881. During the trial, after the cross-examination of the complainant's witness was completed, the first respondent filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) seeking to examine Mr. Anuj Goyal, the original complainant, as a witness. The trial court allowed the application and issued summons to Mr. Goyal. The petitioner challenged this order by filing Criminal Revision Application No. 120 of 2018 before the Sessions Judge, Pune, which was dismissed. Aggrieved, the petitioner filed the present criminal writ petition under Article 227 of the Constitution. The petitioner argued that the first respondent had full knowledge of the memorandum of understanding dated 3rd July 2013 and the cancellation deed dated 25th September 2013, which were already on record, and that the application under Section 311 CrPC was filed deliberately to harass the petitioner after realizing that the proceedings were going to succeed. The court considered the scope of Section 311 CrPC, which empowers the court to summon or recall any witness at any stage if its evidence appears essential for a just decision. The court noted that the trial court had exercised its discretion judiciously and the revisional court had correctly upheld it. The High Court found no perversity or illegality in the impugned orders and dismissed the writ petition.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Section 138 Negotiable Instruments Act, 1881 - The trial court allowed the complainant's application under Section 311 CrPC to recall the complainant for examination after his cross-examination was complete. The accused challenged the order. Held that the power under Section 311 CrPC is wide and can be exercised at any stage to secure just decision. The revisional court rightly upheld the order as the trial court had not committed any error. (Paras 1-5)
B) Criminal Procedure - Interlocutory Order - Revision - Section 397 CrPC - The order allowing recall of witness under Section 311 CrPC is an interlocutory order and revision against it is not maintainable. However, the revisional court considered the matter on merits and dismissed it. Held that the High Court in writ jurisdiction would not interfere with such order. (Paras 1-5)
Issue of Consideration
Whether the trial court's order allowing recall of the complainant for examination under Section 311 CrPC was justified and whether the revisional court erred in upholding it.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the trial court and revisional court allowing the examination of the complainant under Section 311 CrPC.
Law Points
- Section 311 CrPC confers wide discretion on court to summon or recall any witness for just decision
- Section 138 Negotiable Instruments Act
- 1881
- Criminal revision against interlocutory order not maintainable
Case Details
2019 LawText (BOM) (07) 128
Criminal Writ Petition No. 5090 of 2018
Mr. Ashok B. Tajane for petitioner, Mr. Pankaj D. Purway for Respondent No. 1, Mr. A.R. Patil, APP for Respondent State
Shri. Anil Baburao Chalke
M/s. Meenamani Ganga Builder LLP and The State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging orders allowing recall of complainant for examination under Section 311 CrPC in a complaint under Section 138 of Negotiable Instruments Act.
Remedy Sought
Petitioner (accused) sought quashing of order dated 01.09.2018 passed by Sessions Judge, Pune in Criminal Revision No. 120 of 2018 and order dated 12.02.2018 passed by JMFC Cantonment, Pune below Exhibit 72 in SCC No. 1331 of 2016.
Filing Reason
The petitioner was aggrieved by the trial court's order allowing the first respondent's application under Section 311 CrPC to examine the complainant after cross-examination, which was upheld by the revisional court.
Previous Decisions
Trial court allowed application under Section 311 CrPC; revisional court dismissed revision against that order.
Issues
Whether the trial court's order allowing recall of the complainant for examination under Section 311 CrPC was justified.
Whether the revisional court erred in upholding the trial court's order.
Submissions/Arguments
Petitioner argued that the first respondent had knowledge of the memorandum of understanding and cancellation deed from the beginning and deliberately filed the application under Section 311 CrPC to harass the petitioner after realizing the proceedings were going to succeed.
Respondent No. 1 supported the impugned orders, submitting that the trial court exercised its discretion properly.
Ratio Decidendi
The power under Section 311 CrPC is wide and can be exercised at any stage to summon or recall any witness if his evidence appears essential for a just decision. The trial court's discretion in allowing such application should not be interfered with unless perverse or illegal.
Judgment Excerpts
The present writ petition is filed with the following substantive prayer: b) The order dated 01.09.2018 passed by the learned Sessions Judge, Pune in Criminal Revision Application No. 120 of 2018 as well as Order dated 12.02.2018 passed by the Learned JMFC Cantonment, Pune below Exhibit 72 in SCC No. 1331 of 2016 be quashed and set aside.
The Petitioner herein is accused in SCC No. 1331 of 2016 filed by the first respondent. The first respondent filed an application under Section 311 of Code Criminal Procedure (for short 'Cr.PC'), for examination of witnesses Mr. Anuj Goyal.
Procedural History
The first respondent filed a complaint under Section 138 of NI Act against the petitioner. During trial, after cross-examination of the complainant's witness, the first respondent filed an application under Section 311 CrPC to examine Mr. Anuj Goyal. The trial court allowed the application on 12.02.2018. The petitioner filed Criminal Revision No. 120 of 2018 before the Sessions Judge, Pune, which was dismissed on 01.09.2018. The petitioner then filed the present criminal writ petition.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 311, 397
- Negotiable Instruments Act, 1881: 138
