Mansani Krishna Kishore vs State Of Telengana And Another

This Criminal Petition is filed under Section 482 Cr.P.C., to quash the order dated 24-03-2021 in Crl.M.P.No.345 of 2020 in C.C.No.159 of 2018 passed by the learned XIV Addl. Judge – cum – XVIII Addl. Chief Metropolitan Magistrate at Secunderabad. The petitioner herein is sole accused in the said C.C.

Heard learned counsel for the petitioner and learned Public Prosecutor for the State. Perused the record. With their consent this Criminal Petition is disposed of, at the admission stage.

The petitioner herein is sole accused in the said C.C. The offence alleged is under Section 138 of Negotiable Instruments Act. In the said C.C. the petitioner herein has filed an application under Section 311 of Cr.P.C., vide Crl.M.P.No.345 of 2020 to re-call PW-1 on the ground that his counsel was out of country when the matter was posted for cross-examination of PW-1. The said petition was resisted by the complainant on the ground that despite granting several opportunities, the petitioner herein failed to avail the same. The Court below in the impugned order also specifically referred that several adjournments were given to the petitioner herein for cross-examination of PW-1 and even then, he has not availed it.

The impugned order is dated 24-03-2021. To prove the offence under Section 138 of Negotiable Instruments Act, the initial burden lies on the complainant and thereafter it shifts on the accused. While dealing with an application under Section 311 of Cr.P.C., the Court below has to consider the following 3 important aspects:

1) Whether that application can be allowed to arrive at a just conclusion and to find out truth, in the said C.C.

2) Whether the complainant has filed the said application to fill-up the lacune and

3) Whether the accused filed this application to drag on the proceedings.

The record would reveal that despite giving ample opportunity, the petitioner herein failed to avail the same. However, he has filed the said application to re-call PW-1 for the purpose of cross-examination on the ground that his counsel was out of country and therefore, he could not cross-examine PW-1. The said application was filed on 29-01-2021. The dates mentioned in the impugned order are of June, 2019 to February, 2020 i.e., during COVID-19 period. Though, there are lapses on part of the petitioner, according to this Court an opportunity has to be given to the petitioner and the said petition filed under Section 311 of Cr.P.C., to be allowed for the purpose of coming to a just conclusion and to find out truth.

In view of the same, this Court is inclined to accord an opportunity to the petitioner herein. Therefore, this Criminal Petition is allowed and the impugned order dated 24-03-2021 in Crl.M.P.No.345 of 2020 in C.C.No.159 of 2018 passed by the learned XIV Addl. Judge – cum – XVIII Addl. Chief Metropolitan Magistrate at Secunderabad is quashed. PW-1 is complainant himself.

According to learned counsel for the petitioner, the said C.C. is posted to 01-04-2022. Therefore, the petitioner herein shall proceed with the cross-examination of PW-1 on 01-04-2022 positively without seeking any adjournments, failing which, the learned Magistrate is at liberty to take steps, in accordance with law.

Miscellaneous petitions, if any, pending in this criminal petition, shall stand closed.