IMPORTANT POINT
Right to cross-examine complainant is a valuable right.

Shrihari P. Davare, J.—Heard Mr. V.S. Bedre learned counsel for the petitioner as well as Mrs. Manjusha S. Jagtap, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, petition is taken up for final hearing.

3. By the present petition preferred by the petitioner (original accused) under Article 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 1.11.2009, passed by the learned 5th Joint Civil Judge, Senior Division and Judicial Magistrate, First Class, Ahmednagar, below Ex. 61, in STC No.2283 of 2008, thereby rejecting the application preferred by the petitioner herein under Section 311 of Code of Criminal Procedure.

4. Admittedly, the respondent herein (original complainant) filed S. T.C. Case No.2283 of 2008 against the petitioner herein (original accused) under Section 138 of Negotiable Instruments Act. After recording the verification of the complainant, the process came to be issued against the petitioner herein under Section 138 of the Negotiable Instruments Act on 24.7.2008. Thereafter, the respondent herein filed affidavit in support of his claim in lieu of examination-in-chief on 22.1.2009 and the cross-examination of the respondent herein was also conducted on 16.2.2009. Moreover, the respondent examined Assistant Manager of the Union Bank of India, Branch at Ahmednagar and his

cross-examination was conducted on 8.4.2009.

Thereafter, the petitioner herein preferred an application in question (Ex. 61) on 5.10.2009 under Section 311 of the Code of Criminal Procedure, with a prayer to recall respondent (original complainant) for cross-examination since some vital questions remained to be put to him during his cross-examination which was conducted earlier. Learned counsel for the respondent opposed the said application by filing say. Accordingly, the learned Judge rejected the said application (Ex. 61) by order passed on 1.11.2009 and, thereby, declined permission to the petitioner herein to recall the respondent for cross-examination. Being aggrieved and dissatisfied with the said order, the petitioner (original accused) has approached to this Court by way of present petition for prayers as set out therein.

6. Heard learned counsel for the parties.

7. Mr. V.S. Bedre, counsel appearing for the petitioner, relied upon the observations made by the Single Judge of this Court in the case of Dipak Gangaram Ahirrao & Anr. v. State of Maharashtra1, which are quoted in below:

“Held, that in the interest of giving full opportunity to the accused the case was made out by the petitioners to recall the witness in question. If power is available under Criminal Procedure Code to the Court and when it comes to discretion, it should be exercised by taking into consideration the principle of natural justice and with the principle of giving full opportunity to the accused. In the matter of offences of burn injuries and/or the thing of recording statement by the doctor, may goes to the root of the defence. In that case, one cannot overlook the prejudice likely to be caused to the accused. The discretion therefore, need to be exercised judiciously. The possibility of making mistakes to which humans are prone cannot be overlooked. The advocate at the relevant time, if inadvertently or mistake failed to take note of some of basic aspects, in that case, the Court need to consider the case from the point of view of the accused, as it affects or cause prejudice to his defence. This is not the case to “fill the lacuna in the prosecution case” but is an application filed by the accused petitioners during the trial within the framework of the principle laid down by the Apex Court on the foundation of Section 311, Criminal Procedure Code in the case of Mohanlal Soni v. Union of India2 (para 8).”

8. Mrs. Manjusha S. Jagtap, learned counsel for the respondent also relied upon observations made by the Single J