JUDGMENT :

Nutan D. Sardessai, J.

1. The petitioner has invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. in the matter of the order dated 10.04.2019 passed by the Court of the Judicial Magistrate, First Class, Ponda pursuant to which the petitioner's application under Section 311 of Cr.P.C. came to be dismissed.

2. Heard Shri S.S. Kakodkar, learned Advocate on behalf of the petitioner who contended that the respondent had filed the complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short hereinafter), for dishonour of the cheque in the amount of Rs. 12,72,447/- which was dated 20.04.2016 drawn on the Canara Bank, Fatorda Branch, Margao, Goa unlike the loan amount which was Rs. 6,00,000/- sanctioned on 23.02.2008. It was his case that the dishonoured cheque in question did not bear the MICR code and was non negotiable as on the dated of the alleged offence. He adverted to the application moved on behalf of the petitioner under Section 311 Cr.P.C. and submitted that the learned Judicial Magistrate, First Class had clearly ignored the case of the petitioner that the cross-examination of the complainant was cryptic and had been done in a casual and perfunctory manner and it lacked on several aspects including the validity, legality, enforceability and limitation of the said cheque and maintainability of the case and the same had also not been brought in during the examination of the defence witness.

3. It was his contention that the petitioner as an accused could not be made to suffer for the acts of his former advocate and otherwise personally not aware that the cross examination of the complainant's witness and the defence evidence was lacking. Therefore, it was necessary in the interest of justice and for the just decision of the case that the petitioner had to be allowed to recall and re-examine the said witnesses. The learned Judicial Magistrate, First Class was carried away by the plea taken on behalf of the respondent that the petitioner was represented by an advocate who had thoroughly cross examined the complainant's witnesses and also led the defence evidence. The application was without any basis and was a dilatory tactic to delay the proceedings and pressed for a dismissal thereof.

4. The learned Judicial Magistrate, First Class while passing the impugned order had not at all looked into the case of the petitioner as carved out in the application and failed to address itself to the main issue that the recall and re-examination of the witnesses was essential for the just decision of the case while dismissing the application. The learned Judicial Magistrate, First Class had not looked into the question of the validity of the cheque as also the date of the cheque nor had the learned Judicial Magistrate, First Class rendered any finding that the plea so raised was not sufficient for the just decision of the case. He placed reliance in Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461.

5. Shri M. Naik, learned Advocate for the respondent submitted that whether a change of a counsel permitted the recall of the witness and while answering the question in the negative placed reliance in AG Vs. Shiv Kumar Yadav & Anr., 2016 (2) SCC 402, Kavita w/o Satish Agrawal Vs. Mahesh Nagari Sahakari, (Criminal Writ Petition No. 1045 of 2017) and in Chandrakant S/o Kisanrao Bhurkunde Vs. Dayaram S/o Marotrao Choudhari (Criminal Writ Petition No. 801 of 2016). Shri S.S. Kakodkar, learned Advocate in reply submitted that no case whatsoever was made out in AG (supra), nor was the judgment in Rajaram Prasad Yadav (supra), overruled in the said case. There was no conclusion drawn by the trial court that the witness was required for the just decision of the case. On all these parameters it was his contention that the impugned order had to be quashed and set aside and the application had to be allowed.

6.