The court upheld a party's right to recall a witness under limited circumstances to ensure fair trial despite procedural errors.

O R D E R

The petitioner is the accused in C.C.No.986 of 2021 on the file of the Court of the Judicial Magistrate of First Class- I, Palakkad ('Trial Court', in short), which has been filed by the 2^nd respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act , 1881 ('NI Act', in short).

2. The petitioner has stated in the Criminal Miscellaneous Case that the above complaint was posted for the questioning of the petitioner under Section 313 of the Cr.P.C. At that juncture, the petitioner filed Annexure A1 application to question the 2^nd respondent regarding C.C.No.1228 of 2020 pending between the parties. However, by Annexure A2 order, the learned Magistrate has dismissed the application on the ground that the application is filed to protract the determination of the complaint. Annexure A2 order is ex facie illegal and unjustifiable.

Hence, the Crl.M.C.

3. The 2^nd respondent has filed a counter-affidavit, inter alia, contending that the 2^nd respondent has not testified that C.C.No.1228 of 2020 is pending between him and the petitioner. Therefore, the petitioner's prayer to recall the 2^nd respondent for the purpose of questioning him regarding the above case is untenable. The said contention is only a cooked up story. Therefore, there is no error in Annexure A2 order passed by the Trial Court. Hence, the Crl.M.C. may be dismissed.

4. I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the 2^nd respondent.

5. The learned counsel for the petitioner submits that, a reading of Annexure A2 order substantiates that the 2^nd respondent (PW1) has admitted that there are cases pending between the parties. It is only due to an inadvertent clerical mistake that the petitioner had stated that C.C.No.1228 of 2020 is pending between the parties. Actually, the 2^nd respondent has admitted that there are some cases pending between the parties. It is only to clarify regarding the pending cases that the application was filed to recall and re-examine PW1.

5. The learned counsel for the 2^nd respondent opposes the Crl.M.C., on the ground that the substratum of the petitioner's application has been lost since there is no case as C.C.No.1228 of 2020 pending between the parties. Nonetheless, it is not disputed that there are cases pending between the parties.

6. A reading of Annexure A2 order clearly reveals that PW1 has admitted in his cross-examination that there are cases pending between the parties. True, there is an inadvertent error in Annexure A1 application filed by the petitioner regarding the case number. However, it is not disputed that there are cases pending between the parties. Thus, I am of the view that the petitioner should be given an opportunity to recall the 2^nd respondent (PW1) for the limited purpose of cross-examing him regarding the pending cases between the parties. Nonetheless, considering the fact that the complaint is of the year 2021 and that the application was filed after Section 313 questioning of the petitioner, I am satisfied that hardship has been caused to the 2^nd respondent, which can be mitigated by imposing costs on the petitioner, which in turn would ensure a fair trial and the petitioner also gets an equal opportunity to establish his defence, especially in view of Section 139 of the NI Act, wherein the onus of proof is cast on the petitioner's shoulders. Thus, I am inclined to exercise the inherent powers of this Court under Section

528 of the BNSS and interfere with Annexure A2 order. In the aforesaid circumstances, I allow the Crl.M.C. in the following manner:

i) Annexure A2 order is set aside;

ii) Annexure A1 application is allowed, subject to the condit