A complainant who never proved the cheque during trial cannot use Section 311 CrPC to recall himself at the stage of final arguments, the Bombay High Court has held, restoring a trial court order that had refused the recall.
Mumbai: The Bombay High Court has set aside a Sessions Court order that let a complainant in a Section 138 Negotiable Instruments Act case step back into the witness box after the close of evidence to prove the original cheque, finding that the recall application disclosed no cogent reason and that the accused had already filed written arguments [Sajid Ahamad Iqbal Ahamad Bhosage v. Ayyub Ilahibaksh Bagwan].
The writ petition was filed by the accused. Justice Abhay J. Mantri allowed it and restored the trial court’s order rejecting the application for recall.
The cheque is the whole case
A complaint under Section 138 of the NI Act rests entirely on the cheque in question, the Court reasoned, so proof of that cheque is essential. Since the complainant had not proved it, he could not be allowed to fill that lacuna by recalling himself after the evidence had closed, particularly when the accused had already filed written arguments.
An application that gave no reasons
Section 311 CrPC, the Court noted, empowers a court to summon, recall and re-examine any witness at any stage where the evidence appears essential to the just decision of the case. Reading the recall application, however, it found no reason given for recalling the witness and no explanation for why the original cheque had not been produced before the trial court. The application appeared to have been filed casually, the Court observed, and when asked at the hearing, the respondent could not point to any ground in it.
How the dispute reached the High Court
The respondents had filed a complaint under Section 138 of the NI Act against the petitioner. Their evidence closed in 2017, the accused’s statement under Section 313 CrPC was recorded, and the case was posted for final arguments.
It was during those arguments that the accused contended the complainant had never proved the cheque on which the complaint was founded. The complainant then applied under Section 311 CrPC to recall himself as a witness to prove the original cheque. The trial court refused, holding that a complainant could not recall himself at the stage of final arguments merely to fill a lacuna. In revision, the Sessions Court reversed that order and permitted evidence to the limited extent of proving the cheque, and the accused approached the High Court.
The competing arguments
For the petitioner, the argument was that the recall application had been moved only to plug a gap in the complainant’s case, set out no cogent reason, and that the Sessions Court had allowed the revision without recording reasons.
The respondents submitted that the complainant was uneducated and did not know English, and so was unaware of the contents of the complaint. They said the lapse was his advocate’s fault and that he should not suffer for his counsel’s negligence.
That argument did not persuade the Court either. When queried, the respondent could not explain how the complainant was unaware of the contents of his affidavit of evidence, which had been filed in Marathi.
The revisional order falls
The High Court also found the revisional order contrary to the record, noting that the Sessions Court had merely referred to the photocopy of the cheque annexed to the complaint and gave no basis for allowing the revision. It quashed that order and restored the trial court’s refusal. The ruling concerns only the recall application; the cheque bounce complaint itself remains to be decided by the trial court on its merits.
Why the judgment matters
Section 311 CrPC gives courts wide power to recall witnesses, but the ruling makes clear that the power is meant to secure a just decision, not to rescue a party that failed to prove the foundation of its own case. For cheque bounce complainants, the message is practical: the original cheque must be proved during evidence, because a recall application filed after the accused has argued the gap, without stated reasons, is unlikely to succeed.
Case Title: Sajid Ahamad Iqbal Ahamad Bhosage v. Ayyub Ilahibaksh Bagwan
Bench: Justice Abhay J. Mantri, Bombay High Court
