Usha Nagpal Dead Through Lrs Vikash Vijh vs Vivek Nagpal

NEUTRAL CITATION NO. 2026:MPHC-JBP:66418
1 MCRC-27077-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
th
ON THE 24 OF AUGUST, 2026
MISC. CRIMINAL CASE No. 27077 of 2026
USHA NAGPAL DEAD THROUGH LRS VIKASH VIJH
Versus
VIVEK NAGPAL
Appearance:
Shri Siddharth Shrivastava - Advocate for the petitioner.
Shri Ashish Tiwari - Advocate for the respondent.
ORDER
.This petition under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 has been filed against the order dated 24.03.2026 passed by
the learned Judicial Magistrate First Class, Jabalpur in SCNIA
No.2323/2022, whereby the application filed by the complainant under
Section 311 Cr.P.C./Section 348 BNSS seeking recall of the bank witness
was rejected. The impugned order is Annexure A/1. The criminal revision
preferred against the said order was dismissed as not maintainable vide order
dated 22.05.2026, filed as Annexure A/6.
The brief factual matrix is that the original complainant Late Smt.
Usha Nagpal and the respondent were closely related. According to the
complainant, she had advanced a loan of Rs.12,00,000/- to the respondent in
March, 2014 for his business/investment requirements through two cheques
of Rs.8,00,000/- and Rs.4,00,000/-. Subsequently, the respondent allegedly
issued two cheques dated 21.02.2019 for repayment of the said amount. Both
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28

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cheques were dishonoured for insufficiency of funds. The relevant cheque

and return memo are filed as Annexure A/3. A legal notice dated 18.03.2019
was thereafter issued, which was replied to by the respondent disputing the
liability.
The original complainant, who was suffering from serious illness, had
executed a special power of attorney dated 03.09.2019 in favour of the
present applicant for conducting the proceedings. She subsequently expired
on 08.11.2019 and the applicant was substituted in her place. During trial,
bank officials were summoned for proving the relevant transaction. Owing to
an inadvertent error arising from similarity of the titles of two complaints,
the evidence of a bank official was recorded in the other case. After
correction of the said error, the Branch Manager/competent authority of State
Bank of India, Nagpur Road Branch, Shri Dharmaraj Kumar, was examined
on 16.03.2026.
According to the applicant, on examining the statement of the witness
and document Ex.P-9, it became apparent that the particulars relating to
presentation and dishonour of the cheque were not reflected therein.
Therefore, on 23.03.2026, an application under Section 311 Cr.P.C./Section
348 BNSS was filed seeking recall of the witness along with the relevant
bank register and connected records. The application was rejected on
24.03.2026 on the ground that the witness had already been examined and
cross-examined, the complainant had failed to object to non-production of
the documents at the appropriate stage and the application appeared to have
been filed to remove inconsistencies and delay the proceedings. Learned
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28

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counsel for the applicant submits that the Trial Court adopted a hyper-

technical approach. The proposed evidence relates to official bank records
directly connected with the cheque in question and is essential for
adjudication of the complaint under Section 138 of the Negotiable
Instruments Act. It is submitted that the recall is sought only for a limited
purpose and the respondent would have full opportunity to cross-examine the
witness.
Learned counsel for the respondent supports the impugned order and
submits that the complainant has already been granted repeated opportunities
to lead evidence and the bank witness was summoned earlier also. It is
contended that after the witness had been cross-examined, the present
application was filed only to cure deficiencies and fill up lacunae in the
prosecution case, thereby causing unnecessary delay.
Heard the parties through their counsels and perused the material
available on record. The question is whether, in the facts of the present case,
rejection of the application under Section 348 BNSS has resulted in
miscarriage of justice warranting interference under Section 528 BNSS.
Section 348 BNSS substantially incorporates the power contained in
Section 311 Cr.P.C. to summon, examine or recall a witness at any stage of
inquiry or trial. Where the evidence of such person appears to the Court to be
essential for a just decision, the provision casts a duty upon the Court to
exercise the power. The object is to enable the Court to arrive at the truth and
render a just decision, though the power cannot be used arbitrarily or merely
to enable a party to fill up a deliberate lacuna.
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28

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In Rajendra Prasad Vs. Narcotic Cell, (1999) 6 SCC 110 , the Hon'ble

Supreme Court held that the power to recall a witness is not restricted merely
because an omission has occurred earlier. The controlling consideration is
whether such evidence is necessary for a just decision. In Natasha Singh Vs.
CBI (State), (2013) 5 SCC 741, it was reiterated that Section 311 Cr.P.C.
confers wide power which can be exercised at any stage where the proposed
evidence is essential for a just adjudication. Similarly, in Mannan Shaikh and
Others Vs. State of West Bengal and Another, (2014) 13 SCC 59, the
Hon'ble Supreme Court emphasized that the criminal Court's ultimate object
is discovery of truth and a material witness may be recalled where necessary
to secure a just decision.
Applying the aforesaid principles, this Court finds substance in the
petition. The proceeding before the Trial Court is a complaint under Section
138 of the Negotiable Instruments Act and the presentation and dishonour of
the cheque are directly relevant to the controversy. The witness sought to be
recalled is not a new or unrelated witness but the competent bank official
who has already been examined. The applicant seeks production of the
relevant bank register and records concerning the cheque and its dishonour.
The fact that the complainant did not object at the time of examination
of the witness to the non-production of the documents is a circumstance
which may be considered while assessing the bona fides of the application,
but it cannot by itself outweigh the requirement of placing material evidence
before the Court. Procedural diligence cannot be permitted to defeat the
statutory mandate where the evidence sought is directly relevant and
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28

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potentially essential for a just decision. The contention that the application is

intended to fill up a lacuna also cannot be accepted in the present
circumstances. Filling up a deliberate lacuna is different from permitting
production of relevant official records which inadvertently were not brought
on record. The proposed recall can be confined to the production and proof
of the relevant banking documents concerning the cheque in question. The
respondent will have full opportunity to cross-examine the witness and to
raise all objections available in law. Thus, no irreparable prejudice would be
caused to him. The concern of the Trial Court regarding repeated summoning
of the bank witness and delay in the proceedings can adequately be
addressed by restricting the recall to one effective opportunity and to the
specific documents relevant to the cheque transaction. The interest of
expeditious disposal cannot, however, override the requirement of a fair and
complete adjudication.
In the facts of the present case, the Trial Court has principally rejected
the application on technical considerations without adequately examining
whether the documents sought through the bank witness are essential for
deciding the complaint. Such approach has resulted in shutting out
potentially material evidence and calls for interference under the inherent
jurisdiction of this Court.
Consequently, the impugned order dated 24.03.2026 passed by the
learned Judicial Magistrate First Class, Jabalpur in SCNIA No.2323/2022 is
set aside. The application filed by the complainant under Section 311
Cr.P.C./Section 348 BNSS, filed as Annexure A/5, is allowed. The learned
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28

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Trial Court shall recall the concerned Branch Manager/competent authority

of State Bank of India, Nagpur Road Branch, for the limited purpose of
producing and proving the relevant bank register, cheque presentation
particulars, dishonour/return particulars and connected official records
relating to the cheque involved in the complaint. The complainant shall not
be permitted to introduce any new case through such recall. The respondent
shall be afforded full opportunity to cross-examine the recalled witness and
raise all objections permissible in law. The recall shall be conducted on a
proximate date and unnecessary adjournment shall not be granted. The
applicant shall bear the reasonable expenses, if any, occasioned by such
recall.
(HIMANSHU JOSHI)
JUDGE
Prachi

Signature Not Verified
Signed by: ASTHA SEN
Signing time: 01-09-
2026 12:02:28