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2017 DIGILAW 992 (KAR)

BHASKAR P. v. VARADA R. SHRESTI

2017-07-03

ARAVIND KUMAR

body2017
ORDER : ARAVIND KUMAR, J. 1. Heard learned counsel appearing for parties. Perused the records. 2. Petitioner is accused in C.C.No. 10/2008 which is pending on the file of Civil Judge (Jr.Dn.) & JMFC, Harihar, said proceedings came to be initiated by the respondent herein by filing a private complaint under section 200 of Cr.P.C., 1973 read with Section 138 of Negotiate Instruments Act alleging that cheque issued by the petitioner for discharge of debt has been dishonoured and as such, he requested the Jurisdictional Magistrate Court to take cognizance of the purported offence committed by the petitioner-accused and to try him for the said offence. On summons being served, petitioner herein has appeared and obtained bail and proceedings continued before the trial Court. Further, the records disclose that matter has been pending before the trial Court for the past 10 years and it is moving at snails pace. 3. Be that as it may. Petitioner-accused filed an application under section 311 of Cr.P.C., 1973 for summoning the Manager of Harihar Co-operative Bank who had been examined as PW2, interalia contending that said witness has to be further cross examined. After considering the objections filed by the complainant-respondent herein, learned Magistrate allowed the application on 16.7.2016. The said witness appeared before the court on 17.9.2016. However, learned Magistrate by order of even date has recalled the order passed on 16.7.2016 on the ground that PW-2 has already been cross-examined and he would not be a proper witness. Hence, accused challenging the order dated 17.9.2016 passed by the trial Court, this petition has been filed. 4. It is the contention of Sri. Prasanna Kumar, learned counsel appearing for the petitioner that learned Magistrate is not vested with the power to review or recall the order already passed by allowing the application and as such order under challenge be set aside. 5. Per contra, Sri.Kashyap N. Naik, learned counsel appearing for the respondent would support the order passed by the trial Court. 6. Having heard the learned counsel for the parties and on perusal of the records, it would disclose that undisputedly application filed by the petitioner-accused under section 311 of Cr.P.C., 1973 came to be allowed on 16.7.2016. Thereafter matter has been adjourned from time to time for appearance of the witness, PW2, who was ordered to be summoned for recording further evidence. Thereafter matter has been adjourned from time to time for appearance of the witness, PW2, who was ordered to be summoned for recording further evidence. On service of summons, witness PW-2 has appeared on 17.9.2016. However, on said date learned Magistrate has held that said witness has already been cross examined in full and purpose for calling the present witness is to fill the lacuna and same is impermissible. On this ground, trial Court has opined that he is not a proper witness and as such, it closed the side of defence. 7. Where the Court passes a reasoned order on merits based on material on record or on the basis of contentions raised, said Court is not empowered to recall the order. Though in strict-o-sense provisions of section 362 of Cr.P.C., 1973 would not apply or attract to the facts and circumstances of the present case, there cannot be any dispute to the proposition that there is no power available to the learned Magistrate to recall or review the order passed on merits. 8. This view is also fortified by the decision of the Hon'ble Supreme Court in the case of Adalat Prasad v. Rooplal Jindal and others, (2004) 7 SCC 338 : [2004(4) AICLR (S.C.) 376] wherein it is held as under: 16. Therefore, in our opinion XXXXX interlocutory stages. Therefore, we are of the opinion, that the view of this court in Mathew case, that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." 9. In the light of the above dicta laid down by the Hon'ble Supreme Court, this court has no hesitation to hold that exercise of the power by the learned Magistrate in the instant case in reviewing/recalling the order allowing the application filed by the petitioner-accused under section 311 of Cr.P.C., 1973 was impermissible and as such it is liable to be set aside. 10. The learned counsel for the respondent is justified in his apprehension that on these grounds petitioner is protracting the proceedings. Order sheet of the trial court is mirror to the said fact. Hence, this court is of the considered view that petitioner is liable to be put on terms and a direction to the trial Court to dispose of the matter on merits as expeditiously and within a time frame is required to be issued. Order sheet of the trial court is mirror to the said fact. Hence, this court is of the considered view that petitioner is liable to be put on terms and a direction to the trial Court to dispose of the matter on merits as expeditiously and within a time frame is required to be issued. Hence, the following order: ORDER (a) Criminal petition is hereby allowed. (b) Order dated 17.9.2016 passed in C.C. 10/2008 recalling/reviewing the order dated 16.7.2016 is hereby set aside and learned Magistrate shall extend an opportunity to the petitioner to examine PW-2 and petitioner shall keep the said witness present on the next date of hearing. (c) Civil Judge (Jr.Dn.) & JMFC, Harihar, before whom C.C. 10/2008 is pending, shall dispose of the said matter expeditiously at any rate within 15 days from the next date of hearing. Trial Court would be at full liberty to regulate the proceedings, if necessary by putting parties to terms. 11. In view of the disposal of this petition, I.A.2/2017 does not survive for consideration and accordingly, it is dismissed.