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2020 DIGILAW 187 (TS)

P. Uttam Kumar Goud v. Jagini Venkatesh

2020-02-03

G.SRI DEVI

body2020
JUDGMENT G.Sri Devi, J. - The present Criminal Petition is filed by the petitioner/accused under Section 482 of Cr.P.C., seeking to quash the order, dated 14.03.2019 passed in Crl.M.P.No.369 of 2019 in C.C.No.226 of 2017 on the file of the VII-Special Magistrate, Hyderabad, wherein and whereunder, the petition filed under Section 311 of Cr.P.C. to recall P.W.1 was dismissed. 2. The facts of the case in brief are that the 1st respondent/ complainant filed C.C.No.226 of 2017 against the petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. When the matter was posted for further evidence of 1st respondent/complainant, the petitioner/accused filed Crl.M.P.No.369 of 2019, under Section 311 Cr.P.C. to recall P.W.1 for the purpose of confronting and marking of the certified copies of related documents. It is stated in the petition that during the course of cross-examination of P.W.1, he denied the suggestion regarding the case which was filed against him by the brother of the petitioner/ accused vide Crime No.1965 of 2017 of Rajendranagar Police Station, registered for the offences punishable under Sections 386, 420 and 406 of I.P.C.. As such, the petitioner/accused had obtained the certified copies of the documents relating to the said crime, which are essential to prove his contention. Therefore, prayed to recall P.W.1 in order to confront and marking of the documents relating to Crime No.1965 of 2017, which was filed by the brother of the petitioner/accused against the 1st respondent/complainant. The 1st respondent/complainant filed counter opposing the petition. After considering the rival submissions, the trial Court dismissed the said petition. Aggrieved by the same, the present Criminal Petition is filed. 3. Heard learned Counsel for the petitioner/accused, learned Counsel for the 1st respondent/complainant and learned Additional Public Prosecutor appearing for the 2nd respondent/State. 4. Learned Counsel for the petitioner/accused would submit that the trial Court had passed the impugned order without considering the fact that minor omissions in the recall petition shall not be a ground to deny the relief. 3. Heard learned Counsel for the petitioner/accused, learned Counsel for the 1st respondent/complainant and learned Additional Public Prosecutor appearing for the 2nd respondent/State. 4. Learned Counsel for the petitioner/accused would submit that the trial Court had passed the impugned order without considering the fact that minor omissions in the recall petition shall not be a ground to deny the relief. It is also submitted that the learned Magistrate failed to consider that even if the previous Counsel for the petitioner/accused has not put forth the correct proceedings of the Court, the Magistrate could have used the discretion vested in the Court and ought to have overlooked the small mistakes and allowed the petition in the larger interest of securing ends of justice; that the learned Magistrate had erred in holding that the cross-examination of P.W.1 is treated as NIL and as such the question of P.W.1 denying some suggestions and confrontation of documents does not arise and ought to have allowed the petition without going into the said latches committed by the previous Counsel on record in drafting the recall petition; that the learned Magistrate ought to have considered that due to pressure of work, the previous Counsel could have erred in drafting the petition without going through the Court proceedings and could have allowed the petition on some conditions, but erred in not doing so; that the learned Magistrate failed to consider that the petitioner/accused shall not be subjected to prejudice owing to the latches on the part of his previous Counsel and that reasonable opportunity should be given to the petitioner/accused to put forth his defence which is only through cross-examination of P.W.1, who is the main witness; that the learned Magistrate erred in holding in the impugned order that counter was filed but in fact no counter was filed by the 1st respondent/complainant opposing the recall petition and in spite of there being no objection from the 1st respondent/ complainant, the petition was dismissed; and that the impugned order cannot sustain legal scrutiny as such the same requires to be set aside. 5. Per contra, the learned Counsel for the 1st respondent/ complainant would submit that the petitioner/accused has taken number of adjournments since 04.09.2018 to cross-examine P.W.1 and now the matter was posted for arguments of the petitioner/accused and the present petition is filed only to gain time. 6. 5. Per contra, the learned Counsel for the 1st respondent/ complainant would submit that the petitioner/accused has taken number of adjournments since 04.09.2018 to cross-examine P.W.1 and now the matter was posted for arguments of the petitioner/accused and the present petition is filed only to gain time. 6. From a perusal of the material on record, it is revealed that in the petition filed under Section 311 of Cr.P.C., the petitioner/accused stated that during the course of cross-examination P.W.1 denied the suggestion regarding the case filed by the brother of the petitioner/ accused against P.W.1 in Crime No.1965 of 2017 of Rajendra Nagar Police Station, for the offences punishable under Sections 386, 420 and 406 of I.P.C., as such to prove the same, he obtained certified copies of the documents relating to the above Crime and in order to confront and marking of the said documents, he seeks recall of P.W.1. 7. Considering the facts and circumstances of the case and in view of the nature of offence, this Court is of the view that an opportunity should be given to the petitioner/accused to cross-examine P.W.1. 8. Accordingly, the Criminal Petition is allowed, and the order, dated 14.03.2019 passed in Crl.M.P.No.369 of 2019 in C.C.No.226 of 2017 on the file of the VII-Special Magistrate, Hyderabad, is hereby set aside, subject to the condition of petitioner/accused depositing costs of Rs. 5,000/- to the Telangana High Court Bar Association, within a period of one week from today. Further, the learned Magistrate is directed to recall P.W.1 and fix a date for his crossexamination by the petitioner/accused and the petitioner/accused shall complete his cross-examination on the date fixed by the Magistrate. 9. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.