SHAKIL AHMAD AKIL ALI Vs. KISHOR RAMESHCHANDRA MUNDADA

JUDGEMENT

(1.) Both these petitions can be conveniently disposed of by this common order, as the challenge is to a common order passed by the Additional Sessions Judge, Dhule in two different Revision Applications, arising out of two different cases pending before the Judicial Magistrate First Class, Dhule. By consent, Rule is issued in both the matters, and is made returnable forthwith. Respondents waive service. By consent, both the matters are heard finally.

(2.) The petitioner is the original accused in two different cases which are pending before the Judicial Magistrate First Class, Dhule. The cases are in respect of the offence punishable under section 138 of the Negotiable Instruments Act. The respondent No. 1 herein is the original complainant in the said cases. For the sake of convenience and clarity, parties hereinafter are referred to as per their original status i.e. the petitioner as 'the accused' and the respondent No. 1 - as 'the complainant'. The trial of the said cases is in progress. The complainant had already examined himself as a witness in both the cases. Along with his affidavit of examination-in-chief the complainant filed copies of a number of documents on which he placed reliance. It appears that only two of the said documents were, however, marked and exhibited. The other documents were not marked and/or exhibited. Trial progressed. The examination of the accused in both the cases under the provisions of Section 313 of the Code also took place. Thereafter, the complainant made applications in both these cases praying for recall of his witness. The complainant submitted that due to inadvertence, the documents annexed to the affidavit of evidence had not been proved and that, in the interest of justice, the witness of the complainant be recalled for his re-examination, the purpose of which was to prove the documents which were tendered before the Court, but had not been marked and exhibited. The learned Magistrate rejected the applications primarily on the ground that such a prayer was made at the belated stage, going by the time gap between the date of examination of the witness before him and the date on which prayer for his recall - was made. The learned Magistrate was also of the view that, since only the copies of the documents had been tendered and not the originals, they had rightly not been marked and exhibited; and therefore, there was no 'inadvertent failure' to have the documents marked and exhibited. The substance of the reasoning of the learned Magistrate is that, the complainant was well aware that these documents were not being marked and exhibited, but had kept silent and at a much belated stage, made an application for recall of his witness.

(3.) The complainant approached the Court of Sessions by filing two separate revisions applications, challenging the orders passed by the Magistrate refusing to grant an opportunity to recall the witness under the provisions of Section 311 of the Criminal Procedure Code. The Court of Sessions allowed the revision applications by setting aside the order passed by the Magistrate and granting permission to the complainant to recall his witness viz:- Ravindra Desle.