Bombay High Court
Sulochana Sudam Ragade vs Vijaykumar Bandu Dandge on 23 July, 2025
2025:BHC-AUG:19166
(1) crwp267.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 267 OF 2025
Sulochana w/o. Sudam Ragade .. Petitioner
Age. 60 years, Occ. Household,
R/o. Plot No.1, Sonai Market,
Tuljabhavani Chowk, Mayur Park,
Harsul, Chh. Sambhaji Nagar.
VERSUS
Vijaykumar Bandu Dandge, .. Respondent
Age. 49 years, Occ. Service,
R/o. Building No. C-3, Plot No.3-6,
Bhagatsing Nagar, Harsul Parisar,
Chh. Sambhaji Nagar.
Mr. B.A. Dhengle, Advocate for the petitioner.
Mr. S.M. Biyani, Advocate for the respondent-sole.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 07.07.2025
PRONOUNCED ON : 23.07.2025
ORDER :
-
01. This Criminal Writ Petition is filed by the complainant in a
case under section 138 of the Negotiable Instruments Act [for short "NI
Act"], challenging an order passed by the learned Judicial Magistrate,
First Class, Aurangabad, on application below Exh.31 in SCC No. 8363 of
2020 dated 31.01.2025. The learned JMFC by way of the order, allowed
the application of the accused seeking recall of witness i.e. the
complainant for cross-examination.
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02. Facts in short giving rise to the present petition are that the
petitioner filed complaint under section 138 of the NI Act against the
respondent/accused. In the complaint, it is stated that, the petitioner's
son wanted to start a business of Super Shopping. She therefore made
enquiry with the respondent - who was working in the bank, namely,
Aurangabad District Central Cooperative Bank, Harsul Branch. The
complainant and the accused know each other and they are also related
to each other. Since the accused was working at bank, the complainant
asked as to whether her son can get loan from the bank. The accused
told her that the bank can give loan of Rs.1 Crore. The complainant,
therefore, gave 20% amount of loan i.e. Rs.20 lakhs to the accused in
two installments, first installment of Rs.10 lakhs in July, 2018 and
another installment of Rs.10 lakhs in the month of December, 2018.
However, no loan amount was sanctioned. The complainant, therefore,
asked for refund of Rs. 20 lakhs. The accused, therefore, gave a cheque
on 28.08.2020, drawn on Maharashtra Gramin Bank, Rashmi Nagar
Branch, Harsul for an amount of Rs. 20 lakhs. When the said cheque
was presented, the cheque was returned with an endorsement "funds
insufficient". On return of the cheque, the complainant sent notice to
the accused demanding the amount of cheque. Said notice was replied
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denying the liability. The complainant, thus, filed complaint in the Court
of learned JMFC.
03. The complainant filed affidavit of evidence. Thereafter, she
was cross-examined. The cross-examination was over on 15.04.2023.
After evidence of the complainant was over, the defence evidence
started. After the defence evidence, the accused filed an application
seeking recall of complainant for cross-examination. It is stated in the
application that re-examining the complainant is necessary on Exhs.21
and 22. It is stated in the application that previous Advocate was
changed and the accused was forced to engage another Advocate.
Therefore, certain questions were not asked about Exh.21 and the
document at Exh.22 filed by the complainant on 26.05.2022. Copies of
the documents are also not supplied to the accused. Said documents
were produced after commencement of the trial. It is prayed that to give
fair opportunity, the complainant needs to be recalled, as the cross-
examination was conducted without knowledge of Exhs.21 and 22.
04. Said application Exh.31 was opposed by the complainant. It
is submitted that the application is devoid of merit. The cross-
examination of the complainant is already over on 15.04.2024. It is
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stated that documents Exhs.21 and 22 are produced on record on
26.05.2022; whereas cross was over on 15.04.2023. The statement
under section 313 of the Cr.P.C. was also recorded on 28.11.2023 and
prayed that the application be rejected.
05. The learned JMFC on hearing the parties allowed the
application. He considered that the documents were brought on record
within time. It was expected of the accused to go through those
documents and proceed accordingly. The accused, however, failed to do
so and now the application is filed. The Trial Court further considered that
considering the right of the accused and considering the principles of
natural justice, every party should get ample opportunity to put up his
defence and is heard properly. It is fault of the earlier advocate. Any
mistake done by the Advocate should not affect case of the accused. In
that view he allowed the application by imposing costs of Rs.2000/- to be
paid to the complainant. The accused was directed to complete the
cross-examination within two dates after it is commenced. It was further
directed that failure by the accused to comply with the above mentioned
conditions shall automatically nullify the order.
06. The learned Advocate for the complainant vehemently argued
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that the documents were placed on record on 26.05.2022. The cross-
examination was over on 15.04.2023. There is nothing to indicate that
the accused could not get knowledge of those documents. Change of
Advocate, cannot be a reason to recall witness. It is duty of the accused
to diligently conduct the trial. Failure of the accused cannot be to the
prejudice to the complainant. The complainant's evidence is over and at
the stage of defence, such application is filed. The learned JMFC though
observed that case is four years old, the approach of the parties was
casual, still allowed the application, instead of rejecting the same.
07. Learned Advocate for the accused vehemently argued that
the learned Trial Judge has rightly appreciated facts on record. The
Court while allowing the application has restricted the cross only to the
extent of Exhs. 21 and 22. It is necessary to bring on record the truth.
In view of presumption under section 139 of the NI Act, there is reverse
burden on the accused and it is in that view a liberal view is taken. He
thus supports the impugned order and prays for dismissal of the petition.
08. This Court has gone through the impugned order and the
documents annexed with the petition. This Court has heard learned
Advocates for both the parties. About the dates, there is no dispute. The
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only question is as to whether the learned Magistrate is justified in
allowing the application. The learned Trial Judge considered the
judgments in the case of Varsha Garg Vs. State of Madhya Pradesh
reported in AIR 2022 SC (Cri) 1253 and Hoffman Andreas Vs.
Inspector of Customs, Amritsar reported in (2000) 7 Supreme
489.
09. In the case of Varsha Garg (supra), the Hon'ble Apex Court
has dealt with the provisions of Sections 311 and 91 of the Cr.P.C. In
that case the Hon'ble Apex Court held that effort of prosecution to
produce decoding register, which is crucial and vital piece of evidence,
ought not to be obstructed and in that view the application was held to
be rightly allowed. The judgment of the High Court was set aside and
consequently order passed by the Additional Sessions Judge, whereby
application of the prosecution for production of decoding register and for
summoning of the witness was dismissed. Ultimately, said application
came to be allowed by the Hon'ble Apex Court.
10. In the case of Hoffman Andreas (supra), an application for
recall of witness for further cross-examination was filed. During the
pendency of the Trial the defence Counsel expired. The subsequent
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lawyer engaged by the accused was not aware of the scheme of the
defence strategy and was also not aware of the reasons for which former
Counsel had not put to the accused questions on certain aspects. In that
view, the application was filed for further cross-examination. The Trial
Court dismissed the application on the ground that there was nothing on
record to show that earlier Advocate was under mental pressure and that
he was not keeping well or he could not concentrate during the
proceeding. Said order was confirmed by the High Court. The Court
considered that there was unfortunate development that took place
during the trial i.e. passing away the defence Counsel midway trial. The
Counsel who was engaged for defending the appeal had cross-examined
the witness but he could not complete the trial because of his death.
When the new Counsel took up the matter he would certainly be under
the disadvantage that he could not ascertain from the erstwhile counsel
as to the scheme of the defence strategy which the predeceased
advocate had in mind or as to why he had not put further questions on
certain aspects. It is held that the Trial is basically for the prisoners and
courts would afford the opportunity to them in the fairest manner
possible. In that view the Trial Court was directed to allow the
prosecution witness to cross-examination again by putting certain
documents. This case is somewhat similar to the case in hand.
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11. Learned Advocate for the petitioner further relied on the
judgments in the case of Mannan Shaikh and Ors. Vs. State of West
Bengal & Anr., (2014) 13 SCC 59 and Vinod s/o. Vikram
Paithankar Vs. State of Maharashtra, 2022(2) Mh.L.J. (Cri) 647.
12. In the case of Mannan Shaikh (supra), it was held that in
the application under section 311 of the Cr.P.C., the Court should
consider that it is essential to do decision of case. While allowing the
application the Court has first confirmed opinion that it is essential to just
decision of the case. In that case the prosecution made an application at
the stage of arguments. There was no explanation given as to why the
statement of the deceased in that case was not brought on record by the
Investigating Officer. In that view, the Trial Court rejected the
application with the above observations. The High Court reversed the
order of the Trial Court. The High Court observed that non-accepting
statement of the deceased was mistake of the prosecution. The accused
cannot be given advantage of the mistake of the prosecution. The
Hon'ble Apex Court did not interfere with the order passed by the High
Court. Said order of the High Court was upheld.
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13. In the case of Vinod (supra), the question was about
recalling of witness on a statement recorded under section 164 of the
Cr.P.C., which was part of the charge-sheet. It was held that the accused
was aware of the contents of the statement and still the witness was not
confronted with the aid of such statement. It is held that the accused
cannot take stand that he was unaware of the contents of the statement.
In that case the witness to be recalled was a victim of rape case. The
High Court considered that recalling of such witness would cause trauma
to her and held that recalling was not proper in that case. In the said
case what was considered was that the statement under section 164 of
the Cr.P.C. was already supplied to the accused.
14. In the present case, there was no question of sending
document along with charge-sheet as it is a private case. The learned
Trial Court was conscious of the fact and therefore had allowed the
application to cross-examine the witness on certain documents with
costs. After considering the above, this Court finds that the accused
should get fair opportunity. In the present case the documents were
already placed on record. The complainant could not show that specific
notice was given to the accused and that it was within the knowledge of
the accused person that the documents are produced on record. It is
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clear from the record that the documents were produced on record
subsequent to filing of the complaint. Another aspect that needs to be
considered is that now the application is already allowed by granting
opportunity to the accused. Now, it would not be proper to take away
the opportunity granted. That would be denying fair opportunity.
Secondly, the Trial Court was within its power to consider the application
under section 311 of the Cr.P.C. There is nothing to show that the
discretion exercised by the Trial Court is arbitrary or against the settled
principles. This Court does not find any illegality in the order calling for
interference at the hands of this Court under Article 227 of the
Constitution of India.
15. This Criminal Writ Petition, being devoid of merit, stands
dismissed with no order as to costs.
[KISHORE C. SANT, J.]
snk/2025/JUL25/crwp267.25
