Sec.311 of Cr.P.C. - to recall the PW1 for further Cross Examination = the petitioner/accused filed an application under Section 311 Cr.P.C., seeking to recall P.W.1 on the ground that he could not instruct his previous counsel to cross-examine P.W.1 with regard to mode of payment of loan amount and also with regard to legal notice being sent to correct address of the petitioner. A counter came to be filed opposing the same. Relying upon a document dated 31.10.2015 issued by the Municipal Corporation, Nalgonda, wherein it was mentioned that there is no house with Dr.No.4-1-659, an application to recall P.W.1 was filed, but the same was strongly opposed by the counsel. While dismissing the said application, the trial Court held as under: “I have gone through the cross-examination of P.W.1, which shows that he was cross-examined, at length, by the accused, on the above two aspects. This petition is filed by the accused only to dragon the proceedings, at the stage of defence evidence. There are absolutely no merits in the petition, and the same is liable to be dismissed.” = A perusal of the cross-examination of P.W.1 shows that there was specific suggestion to P.W.1 that the accused did not receive the legal notice which is marked as Ex.P-4 and the signature on the postal acknowledgmentEx.P-6 is not that of the accused. The same were denied by P.W.1 - Since no prejudice is caused to complainant if P.W.1 is put to cross-examine with regard to service of notice- the petitioner can be permitted to cross-examine P.W.1 to the extent indicated above. Accordingly, the Criminal Revision Case is allowed by setting aside the impugned order dated 07.01.2016 in Crl.M.P.No.1515 of 2015 in C.C.No.329 of 2012 on the file of the Judicial Magistrate of First Class,

CRLRC 397 / 2016
CRLRCSR 2056 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
YARRAMADHA ASHOK  VSGADE RAM REDDY & ANOTHER
PET.ADV. : SURESH KUMARRESP.ADV. : PUBLIC PROSECUTOR (TG)

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL REVISION CASE No. 397 of 2016
ORDER:
Aggrieved by the order dated 07.01.2016 passed in Crl.M.P.No.1515 of 2015 in C.C. No.329 of 2012 on the file of the Judicial Magistrate of First Class, Special Mobile Court at Nalgonda, wherein an application filed under Section 311 Cr.P.C., to recall P.W.1 for cross-examination with regard to mode of payment of loan and service of notice was rejected, the present Revision is filed.
The facts in issue are as under :
The first respondent herein filed a private complaint against the petitioner herein for an offence punishable under Section 138 of the Negotiable Instruments Act. The said case was taken on file as C.C. No.329 of 2012.
It is the case of the complainant that the petitioner/accused took a hand loan of Rs.14 lakhs to meet his family necessities.
With regard to repaying the said amount with interest, he is alleged to have given a cheque bearing No.464551 for Rs.15,00,000/- towards part satisfaction of the said amount.
The said cheque, when presented, was returned with an endorsement “Funds Insufficient”.
Thereafter a notice was issued on 16.06.2012 calling upon the accused to pay the amount within 15 days from the date of receipt of the notice.
It is said that inspite of service of notice the accused failed to pay the amount. Hence, the present complaint is filed.
During the course of trial, the petitioner/accused filed an application under Section 311 Cr.P.C., seeking to recall P.W.1 on the ground that he could not instruct his previous counsel to cross-examine P.W.1 with regard to mode of payment of loan amount and also with regard to legal notice being sent to correct address of the petitioner. 
A counter came to be filed opposing the same. Relying upon a document dated 31.10.2015 issued by the Municipal Corporation, Nalgonda, wherein it was mentioned that there is no house with Dr.No.4-1-659, an application to recall P.W.1 was filed, but the same was strongly opposed by the counsel. While dismissing the said application, the trial Court held as under: “I have gone through the cross-examination of P.W.1, which shows that he was cross-examined, at length, by the accused, on the above two aspects. This petition is filed by the accused only to dragon the proceedings, at the stage of defence evidence. There are absolutely no merits in the petition, and the same is liable to be dismissed.” 
Challenging the same, the present Revision is filed.
The counsel for the petitioner submits that on coming to know about the filing of the case, the petitioner entered appearance by engaging an advocate but no notice was served on him. The counsel for the first respondent would submit that accused having received the notice has come forward with this plea at a belated stage on the ground that the address mentioned in the notice is incorrect and there does not exists any house with that number.
It is his case that the notice sent from Court is served and as such the present application cannot be entertained. The above contentions raised are based on factual aspects which the trial Court alone can appreciate the same during the course of trial.
Permitting the petitioner to cross examine PW.1 on that aspect namely with regard to service of notice itself may not cause any prejudice to the complainant.
As seen from the order, the learned Magistrate in a very cryptic manner rejected the request made by the petitioner. A perusal of the cross-examination of P.W.1 shows that there was specific suggestion to P.W.1 that the accused did not receive the legal notice which is marked as Ex.P-4 and the signature on the postal acknowledgmentEx.P-6 is not that of the accused. The same were denied by P.W.1. Though the learned counsel for the petitioner sought for cross-examination of P.W.1 with regard to mode of payment, but he fairly submits that he is not pressing for the same. He seeks recall of P.W.1, to cross-examine him only with regard to service of legal notice issued pursuant to dishonour of cheque.
In NATASHA SINGH VS. CBI [1] the Apex Court held as under:- "Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person_s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed.”
Since no prejudice is caused to complainant if P.W.1 is put to cross-examine with regard to service of notice and having regard to the judgment of the Apex Court referred to above, the petitioner can be permitted to cross-examine P.W.1 to the extent indicated above. Accordingly, the Criminal Revision Case is allowed by setting aside the impugned order dated 07.01.2016 in Crl.M.P.No.1515 of 2015 in C.C.No.329 of 2012 on the file of the Judicial Magistrate of First Class, Special Mobile Court at Nalgonda, and the petitioner herein is permitted to cross-examine P.W.1 only with regard to service of notice on him. It is made clear that the petitioner shall confine his cross-examination to the extent indicated above and thereafter proceed with the completion of the case at the earliest. As a sequel to it, miscellaneous petitions pending if any in this Criminal Revision Case, shall stand closed. _______________________ JUSTICE C.PRAVEEN KUMAR Dt: 21.04.2016 GM [1] (2013) 5 SCC 741

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.