RADHESHYAM SINGHANIA Vs. RANJIT KUMAR PATNAIK

JUDGEMENT

(1.) AN usual problem of rejection of a petition under Section 311 of the Criminal Procedure Code, 1973 (in short, 'the Code') read with Section 138 of the Indian Evidence Act, 1872 (in short, 'the Act') filed by the complainant in I.C.C. No. 22 of 1994 of the Court of J.M.F.C., Cuttack has made the petitioner to approach this Court in challenging the order dated. 9.4.1997 with the prayer to quash that order by invoking inherent power under Section 482 of the Code.

(2.) THE dispute centres round an allegation of business dishonestly alleged against opposite parties 1 and 2 who are accused persons in the above noted complaint case. It is stated that to clear up a due of Rs. 50,000/ - (rupees fifty thousand) of the Company (opp. party No. 2), a cheque for the even amount was issued by opp. party No. 1, a Director of that Company, but that cheque bounced due to inadequacy of funds in the Bank account of the opp. parties and ultimately it resulted in filing of the above complaint case against them for the offence under Section 138 of the Negotiable Instruments Act (in short, 'N.I. Act'). At the time of trial, opp. party members having advanced a defence plea of non -service of statutory notice as per Clause (b) of the proviso to Section 138 of the N.I. Act, petitioner examined P.W. 3, an employee of his firm, to prove that after service of such statutory notice by the petitioner on the opp. parties a reply was given by them. That reply letter was proved by P.W. 3 in his examination -in -chief and was marked as Ext. 16. During the cross -examination P.W. 3 made a statement that the contents of Ext. 16 are true and correct.

(3.) IT is argued by learned Counsel for the petitioner that P.W. 3 having no knowledge about the contents of Ext. 16, the answer extracted from him by the accused persons in adopting coercive method necessitated the petitioner to pray for recalling P.W. 3 to explain that circumstance. He further stated that learned Trial Court at the time of such cross - examination did not interfere with the coercive method adopted at the time of that cross -examination. He further argued that re -examination of P.W. 3 is essential in the interest of justice and to arrive at the truth. Learned Counsel for the petitioner argued that learned Magistrate without properly following the provisions of law and the spirit thereof under Section 311 of the Code has unreasonably rejected the prayer to recall the witness.