Petitioner's entitlement to recall a witness in specific circumstances ensures fair trial under Section 138 of the Negotiable Instruments Act.

O R D E R

Dated this the 23^rd day of February, 2026 The petitioner is the accused in S.T.No.916/2021 on the file of the Court of the Special Judicial First Class Magistrate (N.I.Act Cases), Kozhikode, (‘Trial Court’, in short), which has been filed by the 2^nd respondent alleging the commission of an 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, although PW1 was examined and his evidence was closed, due to an inadvertent omission on the part of the petitioner’s erstwhile counsel, certain pertinent questions were omitted to be put to PW1. It is after the petitioner engaged the present counsel that he came to learn that certain crucial questions were not asked to PW1. In the above background, the petitioner had filed an application to recall and re-examine PW1. The said application was opposed by the 2^nd respondent.

Consequently, by the impugned Annexure III order, the Trial Court rejected the application on the ground that incompetence of a counsel is not a ground to recall a witness. Annexure III order is ex-facie erroneous and unsustainable in law. Hence, the Crl.M.C

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

4. The sole reason that the petitioner filed the application to recall PW1 was that his erstwhile counsel had not put pertinent questions to PW1 during his cross examination. It is trite that incompetence of a counsel is not a ground to recall and re-examine an already examined witness. However, it is borne in mind, especially in a prosecution under Section 138 of the NI Act, when the presumption under Section 139 of the NI Act hangs upon the accused, he should be given a full opportunity to contest the case on its merits which should ensure a fair trial.

5. Therefore, notwithstanding the law that has been laid in the decisions already cited in Annexure III order, taking into consideration the peculiar facts and the circumstances of the case, I am of the definite view that the petitioner should be given one more opportunity to cross examine PW1, but subject to the condition that the petitioner mitigates the hardships and inconvenience put to PW1 which has always been compensated by way of cost. Thus, I am satisfied that this is a fit case to exercise the inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 .

In the aforesaid circumstances, I allow the Crl.M.C in the following manner:

(i) Annexure III order would stand set aside subject to the condition that the petitioner pays the learned counsel for the 2^nd respondent before this Court a cost of Rs.5,000/- (Rupees Five thousand only) within a week from today and file a memo to that effect before the Trial Court along with a copy of this order.

(ii) If such memo is filed, C.M.P.Nos.6935/2025 and 7420/2025 will stand allowed and the petitioner would be permitted to re-examine PW1 on the day he appears for further cross examination.

(iii) Considering the fact that the complaint is of the year 2021, the Trial Court is directed to consider and dispose of the complaint, in accordance with law and as expeditiously as possible.

Sd/-

C.S.DIAS, JUDGE NAB PETITIONER ANNEXURES ANNEXURE I A TRUE COPY OF THE CMP NO. 6935/2025 IN ST NO. 916/2021 ON THE FILE OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. ACT CASES), KOZHIKODE DATED 28-07-