bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 994 OF 2008 PETITION NO. 994 OF 2008 PETITION NO. 994 OF 2008 Mr.Ignesh Mingel Langi ... Petitioner v/s 1. Mr.Ravindra Vishnu Dhanu 2. The State of Maharashtra ... Respondents Mr.M.K.Kocharekar for the petitioner. Mr.M.A.Noorani for the respondent No.1. Mr.D.P.Adsule, A.P.P. for the State - respondent No.2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 18TH JUNE, 2008 18TH JUNE, 2008 18TH JUNE, 2008 P.C. P.C. P.C.: 1. The petition has been filed to challenge the order passed on 20.11.2007 by the Metropolitan Magistrate, 12th Court, Bandra, in C.C.No.7965/SS/2005 as also the order passed by the Sessions Court on 10.4.2008 confirming the view of the Metropolitan Magistrate. 2. The petitioner/accused in C.C.No.7965/SS/2005, has alleged that he had taken a friendly loan from the complainant between the months of March, 2004 and July, 2004. He had issued six different cheques to respondent No.1 for repayment of the loan. All the cheques were 2 dishonoured according to the complainant. PW-1, the complainant has been examined and cross-examined as well. During the course of the cross-examination, he has stated that his monthly salary was Rs.12,000/- and that the amount which he had advanced to the accused had been raised by him through his friends, including one Ransom Amboska from whom he had borrowed Rs.3,50,000/-. It is in these circumstances, the accused sought to recall PW-1. The application indicates that Ransom Amboska is a material witness, however, since the accused did not know his address it was not possible to examine him as a witness. It was, therefore, prayed that PW-1 be recalled. 3. The learned advocate for the petitioner submits that no prejudice would be caused to the complainant if he is recalled as a witness. He submits that this lacuna in the cross-examination of PW-1 is required to be filled in and the accused should not be prejudiced by rejection of the application made for recall of the witness. He placed reliance on the case of Rajendra Prasad v/s Rajendra Prasad v/s Rajendra Prasad v/s Narcotic Narcotic Narcotic Cell, reported in (1999) 6 SCC 110. Cell, reported in (1999) 6 SCC 110. Cell, reported in (1999) 6 SCC 110. 4. The learned advocate for the respondent No.1 - complainant has submitted that ample opportunity was given to the accused to cross-examine PW-1 and, 3 therefore, there is no need to recall this witness. He also submitted that there is no explanation in the application as to what efforts were made by the accused to trace the address of Ransom Amboska. He further submits that rest of the trial is complete and, therefore, great prejudice would be caused to the complainant as the trial would be delayed further. 5. In the case of Rajendra Prasad v/s Narcotic Cell Rajendra Prasad v/s Narcotic Cell Rajendra Prasad v/s Narcotic Cell (supra), the Supreme Court has observed that the Court should be magnanimous in permitting the examination or cross-examination to be rectified. This was because the function of a criminal Court is administration of criminal justice and not to count errors committed by the parties. The Court observed that if proper evidence was not adduced or relevant material is not brought on record due to inadvertence, the parties in a trial should not be prevented from correcting an error. 6. It is well settled that the Court has ample power to summon a person as a witness or to recall a witness and to re-examine him at any stage of the trial, depending on the facts and circumstances of each case. A witness can be recalled even after the evidence of both sides is closed. 4 7. The Metropolitan Magistrate, while refusing to recall PW-1 has, by a cryptic order, observed that there is no sufficient reason for recalling the witness. However, the Court has not considered the reasons given by the applicant i.e. the accused for recalling PW-1. The Sessions Court has also not given any cogent reasons for refusing the application. Merely because the witness has been exhaustively cross-examined, it would not necessarily mean that such a witness should not be recalled, if through inadvertence there is some error on the part of the accused in adducing relevant evidence on record. 8. In this view of the matter, both the impugned orders passed by the Metropolitan Magistrate as well as the Sessions Court are set aside. 9. The application for recall of PW-1 is allowed. 10. Writ petition disposed of accordingly.