Advocates:
['ANILKUMAR J THAKKAR', '', 'SAGAR A THAKKAR', 'SACHIN VINOD JAISWAL', '', 'ADITYA JOSHI']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRI. WRIT PETN. NO. 1066 OF 2018

Khilwatram Premlal Dhawade

-Vs.-

Rajesh Harilal Chauare

----------------------------------------------------------------------------------------------------------------------

Office notes, Office Memoranda of

Coram, appearances, Court'

s orders

Court'

s or Judge'

s Orders.

or directions and Registrar'

s orders.

----------------------------------------------------------------------------------------------------------------------

Mr.A.J.Thakkar, counsel for the petitioner.

None for the respondent.

CORAM : MANISH PITALE, J.

DATE

: 12.07.2021

Hearing was conducted through video

conferencing and the learned counsel agreed that the

audio and visual quality was proper.

2.

By this writ petition, the petitioner (original

accused) has challenged order dated 19/07/2018

passed by the Court of Magistrate at Gondia, whereby

an application filed under section 311 of the Code of

Criminal Procedure (Cr.P.C.) on behalf of the

respondent (original complainant), was allowed.

3.

The respondent filed a complaint under section

138 of the Negotiable Instruments Act, 1881, against

the petitioner, claiming that a cheque issued by the

petitioner for an amount of Rs.2,00,000/- was

dishonoured and that offence punishable under section

138 of the Negotiable Instruments Act had been

allegedly committed. The proceedings in the complaint

filed by the respondent proceeded to the stage where

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the complainant was examined, the statement of the

petitioner under section 313 of the Cr.P.C. was

recorded and even the affidavit of the petitioner was

placed on record before the Court below.

4.

On 19/04/2017, an application was filed on

behalf of the respondent to place some documents on

record, in order to support his case. The said

application stood allowed on the same day. Thereafter,

on 30/06/2018, which was more than one year after

the said documents were permitted to be placed on

record, an application was moved on behalf of the

respondent for recalling the complainant to prove the

documents already placed on record. This application

was opposed by the petitioner, on the ground that the

proceedings in the case had reached a stage where the

Court could not exercise power under section 311 of the

Cr.P.C. for recalling the complainant. By the impugned

order dated 19/07/2018, the Court below allowed the

said application. Aggrieved by the same, the petitioner

filed the present writ petition in which notice was

issued on 14/02/2017 and further proceedings in the

complaint case pending before the Court below were

stayed. Despite service, the respondent has chosen not

to appear before this Court.

5.

Mr.A.J.Thakkar, learned counsel for the

petitioner, was heard at length. He vehemently

submitted that when statement under section 313 of the

Cr.P.C. was already recorded and the defence of the

petitioner was already open, particularly in view of the

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affidavit of the petitioner placed on record before the

Court below, there was clear error in the impugned

order in allowing the application filed on behalf of the

respondent for recalling the complainant in order to

prove certain documents filed on record. The learned

counsel for the petitioner invited attention of this Court

to cross-examination of the respondent, wherein he had

categorically stated that he did not find it necessary to

place on record documents, including balance-sheet and

other such documents. It was submitted that in the face

of such stand taken on behalf of the respondent, at a

belated stage, the Court below could not have allowed

the application for recalling the complainant. It was

submitted that this