Case Note & Summary
The applicant, Anil s/o Govindrao Chaudhari, challenged two orders passed by the Judicial Magistrate, First Class, Nagpur dated 14/9/2012 and 15/01/2013 in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The respondent, M/s Taori Marketing, a partnership firm, had filed the complaint alleging dishonour of a cheque issued by the applicant towards payment for goods purchased on credit. The respondent filed an affidavit in evidence on 06/01/2011 and was cross-examined on 26/8/2011. Subsequently, on 30/8/2011, the respondent moved an application (Exh.46) seeking leave to examine its partner, Satyanarayan Taori, as a witness on the ground that the applicant had denied the execution of the power of attorney in favour of the earlier witness, Krishna Shriramji Takalkhede, and had denied the existence of the firm. The trial court partly allowed this application on 09/12/2011, permitting the partner to be examined only for proving the power of attorney. Later, the respondent filed another application (Exh.52) with a similar prayer, which was allowed by the trial court on 14/9/2012, permitting the partner to be examined as a witness for the respondent. The applicant's application for review of that order was dismissed on 15/01/2013. The High Court held that the trial court's orders were without jurisdiction. The court noted that the earlier witness (Takalkhede) had been examined and discharged, and the partner was not a witness who had been examined earlier. The application under Section 311 CrPC was not for recall of a witness but for fresh examination, which is not permissible under that provision. The court emphasized that Section 311 CrPC allows recall or re-summoning of a witness only if his evidence is essential for the just decision of the case, and the trial court had not recorded any such satisfaction. The High Court set aside both impugned orders and directed the trial court to proceed with the complaint from the stage prior to the passing of the order dated 14/9/2012.
Headnote
A) Criminal Procedure Code - Recall of Witness - Section 311 CrPC - Once a witness is examined and discharged, the court may recall or re-summon him only if his evidence is essential for just decision of the case - The trial court's order allowing examination of partner after discharge of earlier witness was held to be without jurisdiction as the partner was not a witness who had been examined earlier and the application was not for recall but for fresh examination - Held that the order was illegal and liable to be set aside (Paras 4-13). B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Complainant's Evidence - The respondent-complainant sought to examine its partner after the power of attorney holder was cross-examined and discharged - The trial court allowed the partner to be examined only for proving power of attorney, but later allowed further examination - Held that the trial court exceeded its jurisdiction under Section 311 CrPC as the partner was not a witness who had been examined earlier (Paras 5-12).
Issue of Consideration
Whether the trial court was justified in allowing the respondent to examine its partner as a witness after the complainant's evidence was closed and the witness was discharged, and whether such order was in accordance with Section 311 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the criminal application, set aside the orders dated 14/9/2012 and 15/01/2013, and directed the trial court to proceed with the complaint from the stage prior to the passing of the order dated 14/9/2012.
Law Points
- Section 311 CrPC
- Section 138 Negotiable Instruments Act
- 1881
- recall of witness
- discharge of witness
- power of attorney
- examination of partner
