IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRL.P.NO.9636 OF 2016 BETWEEN:
M.V.M. MURALI KRISHNA AGED ABOUT 38 YEARS S/O M V RAMANAIAH, R/A MO.6 FLAT NO.301, KRISH APARTMENTS, 9TH MAIN, MALLESHPALYA, NEW THIPPASANDRA POST BENGALURU-75.
(BY SRI. ARUN BHAT – ADVOCATE) AND:
1. M/S MALGUDI PROPERTIES NO.35, NANGA NIVAS, 9TH CROSS 2ND STAGE, BRINDAVANA EXTENSION MYSORE-20 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR Y R RAJESH KUMAR.
2. MR Y R RAJESH KUMAR, MAJOR S/O LATE CHAKRAPANI PROPRIETOR M/S MALGUDI PROPERTIES NO.35, NANGA NIVAS, 9TH CROSS 2ND STAGE, …PETITIONER BRINDAVANA EXTENSION MYSORE-20.
... RESPONDENTS (RESPONDENTS NO.1 AND 2 SERVED - UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 22.11.2016 PASSED IN C.C.NO.27078/2012 ON THE FILE OF XXXIII ACCM, BANGALORE.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is aggrieved by the order passed by the learned Magistrate dated 22.11.2016, whereby the learned Magistrate has allowed the application filed by the accused under Section 311 of Cr.P.C. with cost of Rs.1,000/- and the case was posted for further cross-examination of the petitioner.
2. Respondents are duly served and unrepresented.
3. Learned counsel for the petitioner submits that the application under Section 311 of Cr.P.C., was filed by the respondents/accused when the matter was set down for judgment. Prior to filing of the said application, PW1 was recalled on three occasions on 15.07.2014, 31.07.2014 and 11.11.2014 and was subjected to cross-examination and therefore, merely on the ground that the petitioner/complainant did not file any objection to the said application, the learned Magistrate could not have allowed the said application as a matter of course and hence the impugned order is liable to be quashed.
4. On going through the material on record, it is noticed that after subjecting the complainant-PW1 for cross-examination, at the instance of the accused, he was recalled for further cross-examination on 15.07.2014, 31.07.2014 and 11.11.2014. That being the case, the learned Magistrate could not have allowed the said application as a matter of course without satisfying himself that recall and examination of a person was necessary for fair decision of the case. No doubt, Section 311 of Cr.P.C. empowers the accused to move an application seeking recall of the witnesses but the Court is required to consider the said application on merit and in the instant case, the learned Magistrate has passed the impugned order without even looking into the antecedent facts. Moreover, the learned Magistrate having set down the matter for judgment without re-opening the case could not have entertained the said application. Therefore, either way the order passed by the learned Magistrate cannot be sustained. Accordingly, the impugned order dated 22.11.2016 is hereby quashed.
5. I have perused the application filed by the accused under Section 311 of Cr.P.C. The relevant part of the said application reads as under:
“The accused herein most respectfully submitted that this Hon’ble Court be pleased to recall the PW-1 for the purpose of further cross examination PW-1 by the accused herein, for put to questions alleged cheque transaction and some other questions regarding to Exhibits D1 to D8. It is further submitted that this accused sent reply notice to the complainant in the above case. During the cross examination of PW-1, some vital and important questions pertaining to the cheque in question, alleged transactions of the parties and other particulars pertaining to the case were not put to him which are very vital to his case and further cross examination of PW-1 is required to full fledge trail and proper adjudication of the above matter is absolutely necessary.”
6. The reasons assigned by the accused cannot be a ground to recall the petitioner for further cross-examination. Therefore, even on merit, the said application could not have been allowed by the learned Magistrate. Consequently, the petition is allowed. The impugned order dated 22.11.2016 is set aside. The application filed by the accused under Section 311 of Cr.P.C. is dismissed. The Trial Court shall proceed with pronouncement of the judgment expeditiously.
Sd/- JUDGE TL