In view of the provisions of Section 311 and the
above-referred authorities, it is abundantly clear that
Section 311 empowers the Court to issue summons to
any witness whose evidence is found essential for the
just decision of the case, even if such witness is not
cited by the prosecution originally and this power can
be exercised at any state of the enquiry or trial till
before the judgment is actually pronounced. ‘’
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1706 OF 2019
Balu Bajirao Shinde Vs The State of Maharashtra,
CORAM : SURENDRA P. TAVADE, J.
DATE : 23.08.2021
Rule. Rule made returnable forthwith with consent of the
learned counsel for the parties.
2. The petitioner is challenging the order passed by the
learned Judicial Magistrate, First Class, Patoda, District Beed in
Summary Criminal Case No. 477 of 2010 dated 26th August,
2019, whereby respondent No.2 is allowed to re-examine
himself to prove the document mentioned in the application.
3. It is contended that the trial Court has not considered the
provision of Section 311 of the Code of Criminal Procedure and
wrongly allowed the application. It is contended that respondent
No.2 has fled criminal complaint under Section 138 of the
Negotiable Instruments Act against the petitioner on
16.10.2010. Thereafter, respondent No.2 fled afdavit of
evidence on 24.02.2012. He was cross-examined by the
petitioner. Thereafter, he adduced evidence of his witnesses on
20th April 2013. It is also contended that respondent No.2 has
fled pursis for closing of evidence. Thereafter, he submitted
applications for examination of Bank ofcers. The said
applications came to be allowed. Thereafter, respondent No.2
has also called Manager of State Bank of India, Patoda Branch
to prove the documents relating to the cheque in question. The
said application was allowed. It is contended that on 26th June,
2019 respondent No.2 fled an application under Section 294 of
the Code of Criminal Procedure calling upon the petitioner to
admit or deny the documents referred therein. The said
application came to be rejected by the trial Court. Thereafter,
petitioner fled an application below Exh. 86 wherein he prayed
for his re-examination to prove the original cheque, Bank
receipts, Bank memorandum, notice issued by him and postal
acknowledgment of petitioner. The said application was
objected by the petitioner but it was allowed. The said order is
under challenge.
4. It is contended that respondent No.2 is trying to fll in
lacuna, he was given sufcient opportunity to adduce his
evidence but still no care was taken by respondent No.2 for
proving all his documents. It is contended that even after the
closing of evidence the trial Court had granted an opportunity
to respondent No.2 to examine the witnesses but still
respondent No.2 has not taken care and thereafter by fling
application below Exh. 86 prayed for his re-examination which is
not permissible. It is contended that the order passed by the
trial Court is against law and it may be quashed and set-aside.
5. On the other hand, the learned counsel for respondent
No.2 submits that the Court has ample powers under Section
311 of the Code of Criminal Procedure to recall the witness
already examining in the case for proving the document. It is
contended that the provision of Section 311 of the Code of
Criminal Procedure can be invoked at any stage of the trial
including at the stage of judgment. He also submits that some
documents were remained to be proved on behalf of respondent
No.2, therefore, respondent No.2 submitted an application for
his re-examination which was granted as per the provision of
Section 311 of the Code of Criminal Procedure. The trial Court
has rightly used its discretion and passed the impugned order
which is just and reasonable and there is no need to interfere
with the order of trial Court.
6. Heard the learned counsel for the petitioner and learned
counsel for respondent No.2.
7. Perused the impugned order. To appreciate the contention
of the petitioner, it is required to be seen the chequered history
of the litigation. Admittedly, the complaint came to be fled on
16th October, 2010. Respondent No.2 fled his afdavit of
evidence on 21st February, 2012. His cross-examination was
completed on 16th September, 2012. Thereafter, petitioner has
fled afdavit of his witnesses but he remain absent, therefore,
the afdavit was treated as canceled. Thereafter, on 12th
August, 2013 respondent No.2 fled evidence close pursis which
was taken on record.
8. It appears from the record that thereafter respondent
fled an application on 31.10.2018 for examination of the
officers from State Bank of India. The application for
examination of Bank Officer from the State Bank of India was
allowed and he was examined.
9. Then on 25th March, 2019 respondent No.2 fled an
application for calling Branch Manager of Union Bank of India,
Branch at Beed. The said witness was examined. Thereafter,
on 19.08.2019 respondent No.2 fled an application for his reexamination
to prove the documents. The said application was
allowed and the said order is under the challenge. The events
mentioned above are taken into account, it can be said that the
proceeding is going on before the trial Court since 2010.
Respondent No.2 had adduced his evidence and the evidence
of Bank officers, even after closing the evidence. In fact, the
documents namely cheque, notice, postal acknowledgment
ought to have been produced and exhibited during the
examination of the respondent himself. But it appears that the
said documents were not even produced on record along with
the evidence affidavit of respondent No.2. Thereafter,
respondent No.2 was given opportunity to examine the Bank
ofcers to prove documents namely cheque return memo and
other documents. Accordingly both the ofcers of the Banks
were examined. Thereafter, respondent No.2 has tried to reexamine
himself to prove the documents. In fact, the cheque
return memo could have been exhibited during the examination
of the Bank officers. If those documents were not exhibited
then why officers of both the Banks were examined by
respondent No.2. The said fact is not revealed from the record.
10. Now coming to the provision of Section 311 of the Code of
Criminal Procedure which runs as under :-
‘’ Section 311. Power to summon material witness,
or examine person present-
Any Court may, at any stage of any inquiry, trial
or other proceeding under 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.’’
11. There is no dual opinion about the powers of trial Court to
examine or re-examine the witnesses at any stage of the trial
with the aid of Section 311 of the Code of Criminal Procedure. At
the same time, the trial Court is required to see whether there is
genuine error/ misstate/ fault on behalf of the party applying
under Section 311 of the Code of Criminal Procedure. The
provision of Section 311 of the Code of Criminal Procedure
cannot be invoked to fill up the lacuna in the case. The learned
counsel for the petitioner relied on the ratio laid down in the
case of Gurmeet Surjitsing Asla Vs. Renusingh Jogising
and Others 2008(2) Bom. C.R. ( Cri) 924 wherein the
complainant examined himself and thereafter filed two
applications. Whereby the complainant wanted to bring on
record evidence, which was later discovered. However, the
facts represented through these documents built a totally new
case which even is showing new stance diagonally opposite to
facts which were proved by the complainant. In view of above
facts the Court has set-aside the order of recalling of witnesses
by the trial Court.
12. The ratio of the said case is not applicable to the
facts of this case.
13. On the other hand, learned counsel for respondent No.2
has relied on the ratio laid down in the case of Haribhau S/o
Vithal Pharate And Others Vs. The State of Maharashtra
and Another reported in 2006(6) Mh.L.J. 540 wherein, the
application for recalling of witness was allowed. The said order
was challenged before this Court. This Court has rejected the
petition and observed that
S. 311. Powers to summon material witness, or
examine persons 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.
It does not put any limit or restriction about stage
at which a witness may be summoned or may be
allowed to be examined by the Court. It empowers the
Court to issue summons at any stage of enquiry or trial
if evidence of such witness is necessary for fair trial
and just decision. In P. Chhaganlal Daga Vs. M. Sanjay
Shaw, in a complaint under section 138 of Negotiable
Instruments Act, the complainant had completed his
evidence including his examination, cross- examnation
and re-examination. During cross-examination the
accused had denied service of statutory notice and
had disowned the signature on the acknowledgment.
After completion of evidence, case was posted for
judgment. At that stage, the complainant sought
permission to produce additional material, that is
postal receipt, to prove the service of the statutory
notice. The trial Court granted the permission, which
was set aside by the High Court. The Supreme Court
held that the High Court had erred in interfering in the
order of the trial Court. After referring to authority in
Rajendra Prasad V. Narcotic Cell, the Supreme Court
observed as follows in para 6 of the said judgment.
In deciding so, this Court has taken into account
some of the earlier decisions of this Court including
Mohanlal Shamji Soni Vs. Union of India. In the said
decision this Court had observed that the power to
receive evidence in exercise of Section 311 of the
Code could be exercised ‘’ even if evidence on both
sides is closed’’ and such jurisdiction of the Court is
dictated by the exigency of the situation and fair play.
The only factor which should govern the Court in
exercise of powers under Section 311 should be
whether such material is essential for the just decision
of the case. Even a reading of Section 311 of the Code
would show that Parliament has studded the said
provision lavishly with the word ‘’ any’’ at different
places. This would also indicate the widest range of
power conferred on the Court in that matter. It is so
stated by this Court in Ram Chancier Vs. State of
Haryana.
In Sama Ram Vs. State of Rajasthan and Another
2002 Cril.L.J. 3134, the Rajasthan High Court held that
an application for summoning material witnesses can
be filed at any stage before pronouncement of judgment
and power under Section 311 can be exercised even
during final arguments of the case. In Sidhu Sukhdev
Waghmare Vs. State of Maharashtra, 2004(1) BCR
( Cri.) 351, the learned Single Judge of this court held
that Section 311 of the Criminal Procedure Code
empowers the Court to issue summons to witness at
any stage of trial if the evidence of such witness is
essential to just decision of the case. The learned
Judge observed in para 6 as follows :
‘’However, after taking into consideration the
provisions of Section 311 of Code of Criminal
Procedure, it is clear that it is not restricted only to
issuing the summons to examine the witness who is
cited as a witness by the prosecution, but summons
can also be issued by the Curt to a witness whose
evidence is essential for the just decision of the case
even if the said witness is not cited as witness by the
prosecution’’.
In view of the provisions of Section 311 and the
above-referred authorities, it is abundantly clear that
Section 311 empowers the Court to issue summons to
any witness whose evidence is found essential for the
just decision of the case, even if such witness is not
cited by the prosecution originally and this power can
be exercised at any state of the enquiry or trial till
before the judgment is actually pronounced. ‘’
14. The facts of the said case are also not identical to the
facts of the present case. As already observed that there is no
dual opinion regarding the powers of the Court under Section
311 of the Code of Criminal Procedure. The said provision
allows the Court to summon material witnesses which is already
examined or calling new witnesses which is not cited in the
charge sheet or in the complaint but the rider is that if the
evidence of such witnesses appears to it to be essential to the
just decision of the case.
15. In present case respondent No.2 had given sufficient
opportunity to adduce his evidence. He had in fact adduced his
evidence and evidence of his witnesses and thereafter at his
request three witnesses were allowed to be examined after
closing of the case with the aid of section 311 of the Cr.P.C.
Even thereafter respondent No.2 had submitted application to
re-examine himself to prove the documents. In fact respondent
No.2 had an opportunity to prove his cheque return memo and
cause of dishonour of cheque through Bank Ofcers. But it
appears from the application at Exh. 86 respondent No.2 sought
permission of Court for his re-examination to prove cheque,
Bank receipt, cheque return memo and Bank memorandum.
The respondent No.2 had an opportunity to prove the said
documents through his own examination as well examination of
the Bank officers. But it appears that he has not proved those
documents when witnesses were examined in the Court. As far
as the point of delay is concerned, the complaint is pending
since last more than eleven years. As per the mandate of
Negotiable Instrument Act, 1871 the complainant should have
been disposed or decided within a period of six months.
Therefore, it is high time to curb the activities or tactics of
delay. With this, in my considered view the trial Court has not
taken into consideration the opportunities given to respondent
No.2 for leading evidence and proving the documents through
leading evidence. The trial Court has also lost sight of the
pendency of the litigation and not use its discretion properly.
The impugned order is required to be set-aside. Hence, I pass
the following order.
ORDER
(i) The impugned order passed by the learned Judicial
Magistrate,First Class, Patoda, District Beed below Exh. 86
dated 26.08.2019 in Summary Criminal Case No. 477 of 2010
is hereby set-aside.
(ii) Rule is made absolute.
( SURENDRA P. TAVADE )
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