Recall of complainant for further cross in ni 138 case.
LAXMINARAYAN - Sr Advocate.
(Querist) 01 March 2012
This query is : Resolved
Whether complainant can be recalled for further cross in NI 138 cases u/s 311 of CRPC. There are conflicting judgments of various HC so any conclusive citation of supreme court.
V R SHROFF
(Expert) 01 March 2012
Recall is a Evidence act sec 138, permitted, if new matter is, by permission of court , introduced
It cannot be used to fill in the lacuna of prosecution.
LAXMINARAYAN - Sr Advocate.
(Querist) 01 March 2012
Dear sir our problem is not the recall by the complainant side , but recall of complainant for further cross by the ACCUSED side.
venkatesh Rao
(Expert) 01 March 2012
You can recall for further cross.
Advocate Bhartesh goyal
(Expert) 01 March 2012
Criminal Appeal No 449/2004 decided on 12 4 2004 by Supreme Court
Zahira Habibulla H Sheikh vs State Of Gujrat and others
Raj Kumar Makkad
(Expert) 02 March 2012
Bombay High Court
Vikas S/O Sureshrao Waghmare vs Moreshwar S/O Bhausaheb Kadam on 25 June, 2010
Bench: Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1086 OF 2009 Date of decision:25/6/2010
For approval and signature
HON'BLE MR. JUSTICE SHRIHARI P.DAVARE
1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether Their Lordships wish to see No. the fair copy of the Judgment ?
4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ?
5. Whether it is to be circulated to the No. Civil Judges ?
6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ?
(A.G. PARALIKAR)
Private Secretary
agp/office/
2
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1086 OF 2009
Vikas s/o Sureshrao Waghmare,
Age 35 years, Occu: Service,
r/o Staff quarters, Old Court Building, Gandhi Chowk, Shrirampur,
Shrirampur, Dist.Ahmednagar.
...PETITIONER
(Ori.Accused)
VERSUS
Moreshwar s/o Bhausaheb Kadam,
Age 42 years, Occu: Service,
r/o. Chitale Road, Ahmednagar.
...RESPONDENTS
(Ori.complainant)
...
Mr. V.S.Bedre, Adv., for the petitioner. Mrs. Manjusha S.Jagtap, Adv., for the respondent (sole).
...
CORAM: SHRIHARI P.DAVARE, J.
DATE :25/6/2010
***
ORAL JUDGMENT:
1. Heard Mr. V.S.Bedre, learned Counsel for the petitioner as well as Mrs. Manjusha S.Jagtap, learned counsel for the respondent.
2. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, petition is taken up for final hearing. 3
3. By the present petition preferred by the petitioner ( original accused), under Article 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dt.1st Nov.,2009, passed by the learned 6th Joint Civil Judge, Senior Division and Judicial Magistrate, First Class, Ahmednagar, below Exh. 61, in S.T.C.No.2283/2008, thereby rejecting the application preferred by the petitioner herein under Section 311 of Code of Criminal Procedure.
4. Admittedly, the respondent herein (original complainant) filed S.T.C. case No. 2283/2008 against the petitioner herein (original accused) under Section 138 of Negotiable Instrument Act. After recording the verification of the complainant, the process came to be issued against the petitioner herein under Section 138 of Negotiable Instrument Act on 24.7.2008. Thereafter, the respondent herein filed affidavit in support of his claim in lieu of examination in chief on 22nd Jan.,2009 and the cross examination of the respondent herein was also conducted on 16th Feb.,2009. Moreover, the respondent examined Assistant Manager of the Union Bank of India, Branch at Ahmednagar and his cross examination was conducted on 8.4.2009.
5. Thereafter, the petitioner herein 4
preferred an application in question ( Exh.61) on 5.10.2009 under Section 311 of Code of Criminal Procedure, with a prayer to recall respondent (original complainant) for cross examination since some vital questions remained to be put to him during his cross examination which was conducted earlier. Learned Counsel for the respondent opposed the said application by filing say. Accordingly, the learned Judge rejected the said application (Exh.61) by order passed on 1st Nov.,2009 and, thereby, declined permission to the petitioner herein to recall the respondent for cross examination. Being aggrieved and dissatisfied with the said order, the petitioner (original accused) has approached to this Court by way of present petition for prayers as set out therein.
6. Heard learned Counsel for the parties.
7. Mr. V.S.Bedre, Counsel appearing for the petitioner, relied upon the observations made by the Single Judge of this Court in the case of 2006 (2) Mh.L.J.(Cri.) 89 ( Dipak Gangaram Ahirrao and another Vs. State of Maharashtra), which are quoted here-in-below:
" Held, that in the interest of giving full opportunity to the accused the case was made out by the petitioners to recall the witness in question. If power is available 5
under Criminal Procedure Code to the Court and when it comes to discretion, it should be exercised by taking into consideration the principle of natural justice read with the principle of giving full opportunity to the accused. In the matter of offences of burn injuries and/or the thing of recording statement by the doctor, may goes to the root of the defence. In that case, one cannot overlook the prejudice likely to be caused to the accused. The discretion therefore, need to be exercised judiciously. The possibility of making mistakes to which humans are prone cannot be overlooked. The advocate at the relevant time, if inadvertently or by mistake failed to take note of some of basic aspects, in that case, the Court need to consider the case from the point of view of the accused, as it affects or cause prejudice to his defence. This is not the case to "fill the lacuna in the prosecution case" but is an application filed by the accused- petitioners during the trial within the framework of the principle laid down by the Apex Court on the foundation of Section 311, Criminal Procedure Code in the case of Mohanlal Soni Vs. Union of India, AIR 1991 SC 1346 (para 8)."
8. Mrs. Manjusha S.Jagtap, learned Counsel for the respondent also relied upon the observations made by the Single Judge of this Court in the case of 2009 (2) DCR 313 (Smt.Gurmeet wife of Surjitsingh Vs. 6
Smt.Renusingh wife of Jigisingh and another). It was a complaint for dishonour of cheque wherein the petitioner sought to file further evidence after closing the evidence. It is held that it shall be seen from facts of every case as to whether the party applying is trying to fill in lacuna and if it be so then the application under Section 311 Cr.P.C. ought not be allowed.
On perusal of the contents of the said application ( Exh.61), it is seen that the petitioner herein has stated therein,
"That the cross examination of the complainant has been completed in the present case. There is presumption under Section 138 of the Negotiable Instrument Act in respect of the document produced by the complainant, however, in that connection, some questions remained to be asked in the cross examination inadvertently. Some vital questions are required to come on record for the purpose of defence of the accused. Hence, the principles of natural justice require that the complainant - witness be recalled for his cross examination. If the complainant witness is not recalled for cross examination, the accused would not be able to put forth his defence before the Court."
9. After considering the rival submissions and observations made in the cases cited by both the learned respective Counsel, it is seen from 7
the application Exh.61 ( Exh.C) that the petitioner (original accused) stated therein that some vital questions remained to be asked to the respondent (original complainant) inadvertently and same are necessary to come on record in the interest of justice. It is also stated in the said application that if the respondent is not recalled for cross examination, as prayed for, it would be impossible for the petitioner to put forth his defence before the Court. Hence, it was prayed in the said application that the respondent (original complainant) be recalled for cross examination under Section 311 of Code of Criminal Procedure.
10. In the said context, learned Counsel for the respondent submitted that the petitioner is trying to fill up the lacunae and laches in his case with the tool of recalling respondent under Section 311 of Code of Criminal Procedure and same cannot be permitted in law.
11. Having taken the comprehensive view of the matter, it is necessary to reproduce the contents of provisions of Section 311 of Code of Criminal Procedure Code, for ready reference, as mentioned below:
"311. Power to summon material witness, or examine person present. -
8
Any court may, at any stage of
any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
It is clear from the very text of the Section that at any stage of the inquiry or trial or other proceeding, Court can summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall or re- examine any person already examined, if his evidence appears to be essential to the just decision of the case.
12. The petitioner has stated in the application Exh.61 that some vital questions remained to be asked to the complainant inadvertently. Since there is presumption under Section 138 of Negotiable Instrument Act in respect of the documents produced by the complainant necessary questions are required to be put to the complainant - witness in cross examination and if such questions are not permitted to be put to him by recalling the complainant, the accused would be unable to put forth his defence before the Court, and hence 9
principles of natural justice require that such questions are necessary to be put to the complainant which appear to be essential to the just decision of the said case.
13. Hence, resultantly, the principles of natural justice require that the complainant/respondent be recalled for his cross examination to enable the petitioner herein to avail the opportunity to put the questions to him which remained to be asked inadvertently in the earlier cross examination in respect of the documents produced by the complainant on record, to enable the petitioner herein to put forth his defence before the Court, but such cross examination shall be restricted to the extent of documents produced by the complainant on record and, not beyond that.
14. In the result, present petition is allowed and the respondent (original complainant) be recalled under Section 311 of Code of Criminal Procedure on a specific date (Friday, 23rd July, 2010) and he is directed to remain present before the trial Court for his cross examination but with specific direction that the said cross examination shall be restricted to the vital questions that remained to be asked for by the accused inadvertently in respect of putting his defence before the Court and to the extent of 10
documents produced by the complainant on record and, not beyond that and, the trial Court is further requested to decide the said case as expeditiously as possible but within a period of two months from the date of receipt of writ of this Court to that effect, and simultaneously both the parties are directed to co-operate with the learned Judge for expeditious hearing of the case and its disposal within the stipulated time.
Rule is made absolute in aforesaid terms.
(SHRIHARI P. DAVARE)
JUDGE
...
agp/1086-09crwp
Shonee Kapoor
(Expert) 04 March 2012
Yes, with the permission of the court.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
