IMPORTANT POINT
The court reinforced that under the Negotiable Instruments Act, an accused must file a specific application to recall a witness for cross-examination, failing which the trial can proceed without such examination.

JUDGMENT :

Bharat P. Deshpande, J.

1. Rule. Rule is made returnable forthwith. Heard matter finally at the admission stage with consent.

2. The legality or otherwise of the order dated 14.8.2023 passed by the Magistrate is under challenge in the present petition.

3. Mr Karn would submit that the impugned order needs interference since it is first of all perverse and violative of principles of natural justice as no sufficient time was granted to the petitioner in the present matter and an application for recall of the order is rejected.

4. Mr Karn would submit that the action of the learned Magistrate in closing the cross examination of the complainant is clearly arbitrary and amounts to denial of an opportunity. He submits that such rejection is clearly against the settled principles of criminal jurisprudence of granting fair opportunity to the accused to decide the matter as hurriedly did in the present matter. He would then submit that at the most some cost could have been awarded to the petitioners for the purpose of allowing the order of recall.

5. Mr Karn would further submits that order dated 14.8.2023 was passed without giving any opportunity to the petitioners thereby closing cross examination of the complainant. Petitioners then filed an application for recall of the order dated 14.8.2023 which was rejected by order dated 25.9.2023. He submits that both these orders are challenged in the present petition on the ground that there is no fair trial and opportunity has been denied hurriedly though the respondent/complainant took many opportunities for the purpose of verification and also after issuing process.

6. Mr Karn would submit that complaint under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short) is filed against the petitioners wherein process was issued and the petitioners appeared. Substance of accusation was explained and immediately on the next date, order was passed of closing of the cross examination only on the ground that petitioners/accused failed to file any application under Section 145(2) of the Act. He submits that petitioners by seeking recall of such order was supposed to file the application presuming that order will be recalled and then opportunity will be given to the petitioners to file such application. However by refusing to recall earlier orders, learned Magistrate has practically denied the opportunity to the accused to put forth his defence and to rebut the presumption under Section 139 of the Negotiable Instruments Act 1881.

7. Per contra, Mr Rao would submit that matter being a summary procedure case, is required to be conducted in a time bound manner and in fact on day to day basis. However, petitioners took several adjournments only for the purpose of appearance and furnishing sureties. He submits that when the matter was posted for substance of accusation, the same was explained to the petitioners/accused who pleaded not guilty. Learned Magistrate then placed the matter for trial, however no application was filed by the petitioners/accused seeking cross examination of the complainant, cross was closed and the matter was adjourned for recording statement under Section 313 of Code of Criminal Procedure (“Cr.P.C.” for short)

8. Mr Rao would further submit that on the next date petitioners filed an application for recall of the order dated 14.8.2023 which was rejected and rightly so since there was no application filed under Section 145(2) of the Act. He submits that in absence of such application, the question of recall of the order dated 14.8.2023 would not arise.

9. Rival contentions fall for consideration.

10. A private complaint under Section 138 of the Act is filed against the petitioners claiming that a memorandum of understanding was executed between the parties whereby the complainant agreed to purchase plot D and accordingly issued some cheques.

11. Though the initial request was there not to present the cheques, memorandum of understanding shows that part payment is