13 January 2018
Sir, I am appearing on behalf of accused in complaint u/s. 138 of NI Act. The examination in chief and cross examination of the complainant is over. I have put one question to the complainant about his quit notice sated 07.01.16 sent to the accused( which he has mentioned in his complaint but not produced on record) that whether he has filed the alleged notice on record, which he said no. further questioned that can you assign any reason as to why you have not filed the same- he said no. and therefore made suggestion that as you have not sent the alleged notice and therefore not filed on record, which he denied.
The counsel for the complainant thereafter filed the said notice dated 07.01.16 on record and thereafter filed application for permission for allow the complainant to be recalled and lead additional evidence on the point of notice dated 07.01.16. In his application he stated that as the counsel for the accused in his cross examination put question about notice dated 07.01.16, therefore he be permitted to recall the complainant for additional evidence, which i objected as the complainant cannot be permitted to fill up the lacuna also not permitted by the law. As the complainant in his complaint also mentioned about the said notice dated 07.01.16 . The trial court allowed the said application of the complainant with cost and permitted the complainant to be recalled for additional evidence on the point of said notice dated. 07.01.16.
Now, my query is I require the judgments on the said point as the trial judge has committed an error. Further suggestion is required whether the said order can be challenged before District Judge in revision or should i file Writ Petition before the High Court.
14 January 2018
Filing of the said Notice does not amount to filling up the lacuna or leading any additional evidence, but only correcting an error in the management in the case, which is only a curable defect. Recalling of witnesses is permissible so long as it does not cause any prejudice to the accused.