In Monika v. Usha Shrivastava (CRL.M.C. 8226/2026, decided 3 November 2026), Justice Girish Kathpalia of the High Court of Delhi upheld a trial court order declining to recall the complainant for further cross-examination in a complaint under Section 138 of the Negotiable Instruments Act. The petition was dismissed with costs of Rs 10,000. Two points of procedure stand out: an order refusing recall under Section 348 BNSS is interlocutory, so the bar in Section 438(2) BNSS keeps it outside revision, and the court’s inherent jurisdiction steps in only where a party shows gross injustice, not mere disappointment.
The case in one view
| Case | Monika v. Usha Shrivastava, CRL.M.C. 8226/2026 |
|---|---|
| Court | High Court of Delhi, Girish Kathpalia J |
| Decided | 3 November 2026 |
| Provisions | Section 138, NI Act; Sections 348 and 438(2), BNSS |
| Outcome | Petition dismissed with costs of Rs 10,000; trial court order upheld |
How the trial reached this point
Notice of accusation in the cheque complaint was framed in April 2022. The complainant entered the witness box and was examined-in-chief, with cross-examination begun in mid-2023 but left incomplete. What followed, on the record summarised in the judgment, was a long sequence of adjournments and extensions, several granted expressly as last opportunities. In January 2026, with no appearance to conduct the remaining cross-examination, the trial court closed that chapter and listed the matter for the next stage. The application to recall the complainant under Section 348 BNSS came after that closure and was dismissed by a reasoned order, which the accused then challenged before the High Court.
The two procedural gates
From the judgment (para 9): “passovers and adjournments are matter of courtesy extended by the Court to the counsel” — a courtesy that cannot ripen into a right to keep a witness perpetually available.
Why the recall plea failed
The court’s reasons were cumulative. The complainant had already faced substantial cross-examination. The trial court had accommodated the defence over an extended period, well beyond the norm for a summary-character trial. The default on the final date was not satisfactorily explained. And nothing identified any specific, essential question that remained unput — the application read as an effort to prolong the proceedings rather than to meet a genuine evidentiary need. On that assessment, the High Court dismissed the petition as devoid of merit and directed deposit of Rs 10,000 as costs within a week, with a copy of the order to be sent to the trial court.
Practice pointers
Frequently Asked Questions
What does Section 348 BNSS permit?
Section 348 BNSS, which corresponds to Section 311 CrPC, empowers a court to summon or recall any witness at any stage where the evidence appears essential to a just decision. The provision serves the court's search for truth. It does not oblige a court to restore an opportunity that a party had for years and did not use, and courts examine whether the request reflects a genuine evidentiary need or only a wish to extend the trial.
Why was revision not available against the trial court's order?
Because the order was interlocutory. Section 438(2) BNSS provides that the revisional power shall not be exercised in relation to interlocutory orders. An order declining to recall a witness determines no one's rights finally, so the petitioner moved the High Court's inherent jurisdiction instead — where the threshold is far higher and was not met on these facts.
What facts weighed against the accused?
The complainant had been examined-in-chief and partly cross-examined as far back as 2023. The trial court then extended repeated opportunities, including several described as final. On the date fixed in January 2026 no one appeared to cross-examine, and the court closed the opportunity. The High Court noted the long indulgence already shown, found no satisfactory explanation for the default, and concluded the recall application was aimed at delaying the trial.
What is the takeaway for cheque-case litigants?
Trials under Section 138 NI Act are meant to be summary in character. Parties should complete cross-examination when the witness is available; adjournments and pass-overs are accommodations extended by the court, as this judgment reiterates, and cannot be treated as a standing entitlement. A closed opportunity will be reopened only on a genuine, well-explained need.