Allowed

P Priya Chaitanya v. the State of A.P

Andhra Pradesh HC4 Sept 2019CRLRC/443/2018

Case brief

AI extract

What is this about?

In a criminal revision, the High Court allowed the recall of a witness to cross-examine him regarding the service of two postal acknowledgments under Section 138 of the NI Act, setting aside the trial court order that dismissed the petition as belated.

What did the court decide?

Petition allowed; impugned order set aside; lower court directed to recall P.W.1 for cross-examination on the postal acknowledgments.

P Priya Chaitanya Vs the State of A.P — Banking and Recovery | Andhra Pradesh HC (2019)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL REVISION CASE No.443 OF 2018

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ORDER :

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1. Challenging the order, dated 29.01.2018, in Crl.M.P. No.3 of 2018 in C.C.No.208 of 2014, passed by learned Principal Junior Civil Judge, Tenali, dismissing the petition filed by the petitioner/accused under Section 311 of Cr.P.C seeking to recall P.W.1 for further crossexamination in respect of Ex.P5 and also in respect of served copy of postal acknowledgment dated 17.07.2013 and for marking the same, the instant Crl.R.C is filed.

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2. Heard.

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3. Learned counsel for petitioner/accused would argue that the respondent/complainant filed Ex.P5, which is said to be the served copy of postal acknowledgment dated 15.07.2013. He would further submit that the respondent/complainant filed Ex.P5 and he also filed another acknowledgment dated 17.07.2013 which contains the address of the counsel for respondent/complainant. Learned counsel would further submit that in fact both the notices dated 15.07.2013 and 17.07.2013 were not at all served on the petitioner/accused and signatures appearing on the acknowledgments do not belong to her. However, the respondent/complainant filed both the acknowledgments into the Court stating as if the statutory notice

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UDPR,J Crl.R.C.No.443 of 2018

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under Section 138 of N.I. Act was served on the petitioner/accused by

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way of the registered notices under the impugned acknowledgments. However, he got marked only one postal acknowledgment as Ex.P5. Therefore, it is necessary to recall P.W.1 to cross-examine him in respect of two postal acknowledgments under which notices were allegedly served on the petitioner/accused. He would argue that the trial Court dismissed the petition on the ground that the petition was filed belatedly at the stage of arguments despite the petitioner/accused knowing about the filing of the two postal acknowledgments in to the Court and that he kept quiet for more than two years and filed the petition at a fag-end of the case.

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4. On perusal of the impugned order, I am unable to agree with the observation of the trial Court. At the outset, the case of the petitioner/accused is that neither Ex.P5 nor the postal acknowledgment dated 17.07.2013 which are said to contain her signatures were in fact received by her. Thus, she claims that the statutory notice under Section 138 of N.I. Act was not received by her through the two postal acknowledgments. It appears on this aspect in the earlier cross-examination, P.W.1 was not sufficiently questioned. Serving of statutory notice within the specified time being one of the mandates under Section 138 of N.I. Act, in my considered view,

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UDPR,J Crl.R.C.No.443 of 2018

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petitioner/accused shall be given an opportunity to cross-examine

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P.W.1 only on that particular aspect.

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5. Section 311 of Cr.P.C says;

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Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

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Thus, witness can be recalled at any stage before the pronouncement of the judgment in deserved cases. This is one of such instances. Hence, the Crl.R.C is allowed and the impugned order, dated 29.01.2018 in Crl.M.P.No.03 of 2018 in C.C.No.208 of 2014, is set aside . Lower Court is directed to recall P.W.1 and give an opportunity to the petitioner/accused to cross-examine P.W.1 in respect of Ex.P5 and postal acknowledgment dated 17.07.2013 only.

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6. As a sequel, miscellaneous petitions pending, if any, in this case

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shall stand closed.

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________________________ U.DURGAPRASAD RAO, J Date: 04.09.2019 MS

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UDPR,J Crl.R.C.No.443 of 2018

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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CRIMINAL REVISION CASE No.443 OF 2018

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Date. 04.09.2019

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P Priya Chaitanya v. the State of A.P

Case brief

What is this about?

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P Priya Chaitanya v. the State of A.P

Case brief

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