1. Present petition has been filed by the original accused invoking the inherent powers of this Court under Article 226 and 227 of the Constitution of India to challenge order below Exh.141 in Summary Criminal Case No.1397/2014 dated 07.01.2020 passed by learned Judicial Magistrate First Class (Court No.1), Parbhani, whereby his application under Section 311 of the Code of Criminal Procedure, 1973 (in short Cr. P. C.) to recall the complainant has been rejected.
2. The factual matrix giving rise to the present petition are, that the present respondent has filed the said Summary Criminal Case contending, that the accused i.e. present petitioner has committed offence punishable under Section 138 of the Negotiable Instruments Act. The complaint contends, that in all three cheques were given by the accused in discharge of legal debt or liability to the complainant amounting to Rs.7,00,000/- in all and after presentation of those cheques they were dishonoured. Statutory notice was given to the accused on 23.09.2014, which was received by the accused on 24.09.2014 and inspite of receipt of the notice he failed to comply with the same. Hence complaint.
3. After the process was issued against the accused he appeared in the matter. His plea was recorded. Complainant has led evidence. It also appears that the matter was referred for mediation. A compromise deed was arrived at. An order came to be passed by the learned Presiding Officer stating that the matter be placed on the fixed date for recording compromise. It appears that thereafter the compromise has not been read and recorded, rather the evidence proceeded. An application came to be filed by the accused at Exh.141 for recall of the complainant. It was stated that in view of the compromise the cross-examination of the complainant was conducted by the side of the accused under wrong conception, impression and confusion. It was stated that the question regarding source, capacity, signature remained to be asked to the complainant. Further the complainant has produced as many as 18 documents along with list dated 01.02.2017, after the completion of cross-examination, and therefore, it is necessary to recall the complainant under Section 311 of the Code of Criminal Procedure for further cross-examination.
4. The application was objected on the ground that even earlier at Exh.70, similar application was given by the complainant. That application came to be rejected. The accused had challenged the said order in Criminal Revision Application No.62/2017. The said revision came to be dismissed on 09.11.2017. The said order passed by the Revisional Court was not further challenged, and therefore, the said point has received finality. It is stated that though along with the list 18 documents were produced, yet, the exhibits are given by referring those documents in the cross-examination of the accused, who had entered into the witness box. The application has been filed only to protract the matter, and therefore, it was prayed that the application Exh.141 be rejected.
5. After hearing both sides the learned Judicial Magistrate First Class, Parbhani has rejected the said application on 07.01.2020. Now, the accused has directly approached this Court challenging the said order.
6. Heard learned Advocate Mr. N.K. Tungar for petitioner and learned Advocate Mr. M.B. Sandanshiv for sole respondent.
7. Learned Advocate for the petitioner argued in support of the application and submitted that since those documents along with the list, which was produced after the cross-examination of the complainant, came to be exhibited, the accused should receive fair opportunity, and therefore, recall is necessary. He placed reliance on the decision in Mohanlal Shamji Soni vs. Union of India , AIR 1991 SC 1346, wherein it has been held that -
"It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points on issue but it is left to the parties to establish their respective case by adducing such available evidence and the court cannot compel either the prosecution or the defence to examine any particular witness. Nonetheless if either of the parties will hold any evidence which the unfavourable to the party holding the same, the court can draw an adverse inference against him under Section 114 (g) of Evidence Act . Power is given to the court under Section 311 where under the court by exercising its discretionary authority, at any stage of the inquiry, trial or other proceedings can summon any person of witness or examine any such person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter. However, when any additional evidence is examined or fresh evidence is admitting, it is absolutely necessary in the interest of justice that the accused should be accorded a fair and reasonable opportunity to rebut that evidence."
Further, reliance has been placed on P. Sanjeeva Rao vs. State of A.P ., AIR 2012 SC 2242, wherein it has been held -
"Though not making an application or oral prayer for deferring cross- examination of two PWs was a mistake and belated recall of said PWs for cross-examination may cause prejudice to prosecution case due to fading memory. Denial of an opportunity to recall witnesses for cross- examination would amount to condemning appellant without giving him opportunity to challenge correctness of version and credibility of witnesses. It is trite that credibility of witnesses whether in a civil or criminal case can be tested only when testimony is put through fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in present case keeping in view the serious consequences that will follow any such denial."
8. Per contra, the learned Advocate appearing for the respondent submitted that affidavit-in-reply has been filed by the respondent giving all the particulars, as to how the matter has proceeded and how the petitioner had in fact cheated the complainant. There is total suppression of facts in respect of application Exh.70 rejected by the Trial Court on 03.05.2017 and the revision preferred by him before the learned Adhoc Additional Sessions Judge, Parbhani. Another attempt was made to approach this Court in Criminal Writ Petition No.1146 of 2019, however, after hearing both sides the learned Advocate for the petitioner sought withdrawal of the writ petition. That means, the Court was not with the petitioner. Petitioner was a Police Naik. Charge sheet was served on him by the Police Department. Copy thereof has been produced, which shows that about 14 cases for the offence punishable under Section 138 of the Negotiable Instruments Act have been filed against the petitioner by various persons. Further, offence punishable under Section 406 , 420 read with Section 34 of the Indian Penal Code has been registered against him and one more offence punishable under Section 143 , 147 , 149 , 353 , 332 , 448 , 427 , 160 of the Indian Penal Code and Criminal Law Amendment Act as well as Section 3 of the Prevention of Public Property Damage Act is also registered. The petitioner has been dismissed from service. Under such circumstance, he is adopting protracting tactics, and therefore, case is not made out to use the Constitutional powers of this Court.
9. It is to be noted that application Exh.70 was filed, when the case was pending for recording statements of the accused under Section 313 of Cr.P.C. and it came to be rejected. Definitely at that time the documents along with list dated 20.12.2017 was not on record, but thereafter as per the petitioner, those documents were filed by the complainant and those documents came to be exhibited. The certified copy of the evidence led by the accused in defence has been made available. It is to be noted that though certain documents, which were along with list Exh.98, came to be exhibited in the cross-examination of the accused, conducted on behalf of the complainant, that means, those documents have been exhibited in the cross of the accused himself and not behind his back. Those documents are in respect of the other proceedings against the accused under Section 138 of the Negotiable Instruments Act. This might be to show the conduct of the accused. However, it cannot be equated, that when the accused had cross- examined the complainant, he could not have asked questions regarding source, capacity, signature etc.. The compromise Exh.24 was never read and recorded because of the conduct of the accused. If it would have been read and recorded, he would have been acquitted at that time itself. But when thereafter the evidence was led and the accused was called upon to cross- examine the complainant, it ought to have been on every point. Now, the accused cannot come and say that he was under confusion, at that time. Further, even this ground was available when he filed application Exh.70, that the cross earlier taken was under wrong conception, impression and confusion. No such ground was then taken by him. Application Exh.70 was rejected. The revision preferred by the present petitioner was also rejected and it appears that there was either no attempt or it was in Criminal Writ Petition No.1146 of 2019, that was tried to be challenged.
10. Section 311 of Cr.P.C. consists of two parts. The first part is discretionary. When an application is made to the Court, then the Court, taking into consideration the facts and circumstances, may exercise the said discretion. However, as regards the second part of the said section is concerned, it is mandatory and when the Court considers that the witne
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ss should be recalled and it is in the interest of the decision of the case, then no option is left even to the Court but to call the witness. The present case is covered under the first part i.e. discretionary. Taking into consideration the conduct of the accused and the fact that the documents have been exhibited in the cross of the accused in order to bring his conduct on record, the learned Trial Judge was justified in not using the discretion in favour of the accused. A well reasoned order has been passed by the learned Trial Court. It requires no interference at all, even under the Constitutional powers of this Court. 11. The ratio laid down in both the decisions relied by the learned Advocate for the petitioner cannot be ruled out. 12. However, the fair opportunity was already given in this case to the accused to conduct the cross-examination, which is not been properly utilized, if at all it is to say of the accused that he has not properly conducted the cross-examination. Writ petition, therefore, deserves to be dismissed. Accordingly, it is dismissed.