Decided on March 09,2020

Shankar Lotlikar Appellant
Pundalik Venktesh Verlekar, Son Of Venktesh Verlekar Respondents


Nutan D.Sardessai,J. - (1.) The petitioner has invoked the jurisdiction of this Court under Section 227 of the Constitution of India read with Section 482 of Cr.P.C., 1973 in the matter of the order dated 14.10.2019 passed by the Court of the third Addl. Judicial Magistrate, First Class, Margao.
(2.) Heard Shri S.S. Kakodkar learned Advocate for the petitioner who contended that the complaint was lodged by him against the respondent for dishonour of the cheque in an amount of Rs.9,00,000/- under Section 138 of the Negotiable Instruments Act, 1881 (Act for short hereinafter). A total number of five cheques were issued by the respondent in discharge of his liability which were however returned dishonoured and the process was started by filing a complaint under Section 138 of the Act. Process was issued and thereupon an order was made under Section 143 A of the Act directing the respondent to deposit an amount of Rs.1,80,000/-. Since the amount was not forthcoming, an order was passed under Section 421 Cr.P.C. for recovery which was pending since then. The petitioner as the complainant had filed his affidavit in evidence and as on 16.03.2019 part of the examination was over and part of the cross examination was conducted on 11.04.2019. The cross examination was closed on 16.08.2019 and thereafter the case was adjourned for recording the statement under Section 313 Cr.P.C. An application was moved under Section 311 Cr.P.C on 29.08.2019 by the respondent/accused seeking for the recall of the complainant for cross examination and setting aside the order dated 16.08.2019 closing the cross examination of the complainant.
(3.) The learned Magistrate however, consequent to the impugned order dated 14.10.2019 allowed the application for recall under Section 311 Cr.P.C. without any basis whatsoever when no power of recall was available to the Magistrate in terms of Section 311 Cr.P.C. on the closure of the evidence. It was also not available to invoke such a power to fill up the lacuna and moreover the learned Judicial Magistrate, First Class overlooked the reasons in the order dated 16.08.2019. There were also no findings recorded by the learned Judicial Magistrate, First Class that the recall of the witness was necessary for a just decision of the case. The reply filed by the petitioner was also not considered by the learned Trial Court which was besides the fact that it lacked inherent jurisdiction to recall its own order. The impugned order passed by the learned Judicial Magistrate, First Class was against the statute and against its jurisdiction. The roznama produced by the respondent was from 11.06.2019 and not prior thereto which would show the number of occasions where he had sought for adjournments. He placed reliance in Rajaram Prasad Yadav, 2013 14 SCC 461 and pressed for quashing of the order passed by the learned Judicial Magistrate First Class.;

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