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2020 DIGILAW 209 (AP)

Atukuri Ramalingeswararao v. State of A. P.

2020-03-06

J.UMA DEVI

body2020
JUDGMENT : J. Uma Devi, J. 1. This petition is filed under Section 482 Cr.P.C., seeking to quash the order dated 16.08.2019, passed in C.R.P. No. 8 of 2019, on the file of Principal Sessions Judge, Ongole, Prakasam District, consequently to set aside the order dated 17.01.2019, passed in Crl.M.P. No. 7077 of 2018 in C.C. No. 414 of 2016, on the file of Special Judicial Magistrate of the First Class, Mobile Court-cum-IV Additional Junior Civil Judge, Ongole, Prakasam District. 2. The petitioner is the accused in C.C. No. 414 of 2016, on the file of Special Judicial Magistrate of the First Class, Mobile Court-cum-IV Additional Junior Civil Judge, Ongole, Prakasam District. The 2nd respondent has filed a private complaint against the petitioner alleging that the cheque dated 15.06.2013 bearing No. 260234 issued by him towards part satisfaction of the amount borrowed under a promissory note dated 15.06.2012 is bounced when it is presented for collection on 17.06.2013 with the endorsement "insufficient funds". Due to dishonour of the aforementioned cheque, the 2nd respondent has initiated the proceedings against the petitioner under Sections 138 and 142 of N.I. Act in C.C. No. 414 of 2016. In the said case a petition was filed by the petitioner vide Cri.M.P. No. 7077 of 2018 for recalling of P.W. 1 for further cross-examination and the same was dismissed by the learned Magistrate on 17.01.2019. Against the said order, the C.R.P. No. 8 of 2019 was filed on the file of Principal Sessions Judge, Ongole and the same was also dismissed confirming the order passed by the trial Court. 3. These are the circumstances which made the petitioner to file the present application seeking to quash the order dated 16.08.2019, passed in C.R.P. No. 8 of 2019, on the file of Principal Sessions Judge, Ongole, Prakasam District and consequently allow the same by setting aside the order dated 17.01.2019, passed in Crl.M.P. No. 7077 of 2018 in C.C. No. 414 of 2016, on the file of Special Judicial Magistrate of the First Class, Mobile Court-cum-IV Additional Junior Civil Judge, Ongole, Prakasam District. 4. The revision petitioner's contention is that an application to recall the P.W. 1 is made to cross-examine him on certain aspects which his previous counsel failed to do. 4. The revision petitioner's contention is that an application to recall the P.W. 1 is made to cross-examine him on certain aspects which his previous counsel failed to do. Since some crucial aspects which are in favour of the petitioner are to be brought on record by cross-examining P.W. 1 filed an application for recalling P.W. 1, is made before the Court below. The trial Court and the revisional Court without proper appreciation of the factual aspects pleaded by him in the petition where stated the circumstances which compelled to make the application under Section 311 Cr.P.C. have refused to grant the relief claimed by him. As no opportunity is given to him to defend his case by bringing some crucial aspects which are in his favour, the present application is made seeking to set aside the order passed by the revisional Court and also the order passed by the trial Court. 5. I have read the order impugned, and also the order passed by the learned Magistrate before whom the C.C. No. 414 of 2016 filed against the petitioner is pending for adjudication. The affidavit annexed to the petition made under Section 311 Cr.P.C., which is made available in the case file is perused by me. 6. It is understood from the averments mentioned in the affidavit annexed to the petition made under Section 311 Cr.P.C. that the reason assigned to recall P.W. 1 is that his previous counsel failed to ask some important points which are necessary for this case. 7. It appears from the material on record that while the C.C. was coming up for recording of the evidence of P.W. 2, application under Section 311 Cr.P.C. was made by the petitioner without stating on which aspects his previous counsel did not cross-examine P.W. 1 and on which aspects, the petitioner intended to cross-examine P.W. 1. The only reason assigned for making the application under Section 311 Cr.P.C. to recall P.W. 1 for the purpose of cross examination that his counsel failed to ask some important points which are necessary for his case and that he changed his previous counsel as he had some understandings with him. 8. It also appears from the order-impugned and also from the order passed by the trial Court that P.W. 1 is cross-examined at length. 8. It also appears from the order-impugned and also from the order passed by the trial Court that P.W. 1 is cross-examined at length. It is not the case of the petitioner that he changed his advocate as he fell ill to order for recalling P.W. 1 by applying the observations made by the Apex Court in Hoffman Andreas v. Inspector Customs, Amritsar, (2003) 10 SCC 430 and Riyazuddin and others v. State of Uttar Pradesh, 2001 Crl.LJ 3907. 9. The revisional Court took the view that change of advocate or lawyer is not a ground to recall of the witness. The aforementioned view of the trial Court is fructified by a decision rendered in Beagari Pentaiah and others v. State of AP, 1998 (2) ALT (Crl.) 353 (A.P.) : 1998 (2) ALD (Cri) 627 (AP). The petitioner did not specify the reason on which he intends to cross-examine the P.W. 1 except making a vague statement that P.W. 1 is to be cross-examined on some important aspects to prove his case. This has not been felt as a valid ground by the trial Court as well as revisional court to order for recalling of P.W. 1. 10. The revisional Court has rightly held that the order passed by the learned Magistrate is an interlocutory order and no revision lies against the said order under Section 311 of Cr.P.C. The revisional Court on this regard placed reliance on a decision rendered in Sethuraman v. Rajamanickam, (2009) 5 SCC 153 where Apex Court observed that: "(4) Secondly, what was not realized was that the order passed by the trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C. were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C.......Therefore, both the orders i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 CrP.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable......" 11. The order impugned, in my considered view, is not suffering from factual and legal infirmities. I am of the considered opinion that the order impugned needs no interference as it has been passed taking into consideration of all factual and legal aspects. The order impugned, in my considered view, is not suffering from factual and legal infirmities. I am of the considered opinion that the order impugned needs no interference as it has been passed taking into consideration of all factual and legal aspects. The Court below has thoroughly appreciated all the factual and legal aspects into consideration before passing of the impugned order. 12. For the mentioned reasons in preceding paras, the criminal petition fails and is hereby dismissed accordingly. 13. Consequently, miscellaneous petitions pending, if any, shall also stand disposed of.