Elite Udyog, Akola Proprietor ... vs Mangalmurti Tractors And Motors, ...
2017 Latest Caselaw 3948 Bom

                                                    1                       apl243.16.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

              CRIMINAL APPLICATION (APL) NO.243/2016

      Elite Udyog, Akola,
      Proprietor Dnyandeo Ninu Patil,
      aged 60 years, Occ. Business, 
      Radhakrishna Talkies Complex,
      Murtizapur Road, Akola, Tq.Dist.Akola      .....APPLICANT
                        ...V E R S U S...

      Mangalmurti Tractors & Motors, 
      Proprietor Sonal @ Kishor Subhash
      Ulemale, aged adult, Occ. Business,
      r/o Pusad Naka, Akola road, Washim,
      Tq. Dist. Washim.                                       ...NON APPLICANT
 -------------------------------------------------------------------------------------------
 Mr. D. S. Patil, Advocate for applicant.
 Mr. V. B. Bhise, Advocate for non applicant.
 -------------------------------------------------------------------------------------------
                                              CORAM:- V. M. DESHPANDE, J.

DATED :- 04.07.2017 ORAL JUDGMENT

1. Rule. Rule returnable forthwith. Heard finally by

consent of the parties.

2. The original complainant is before this Court since

complainant is aggrieved by the order passed by the revisional

Court on 12.01.2016 in Criminal Revision No.64/2013 thereby

allowing the revision and upsetting the order passed by the

learned Magistrate rejecting the application Exh.-85 filed on behalf

of the non applicant-accused for recalling of the witness.

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3. A complaint was moved by the applicant since a cheque

worth Rs.7,32,968/- which was admittedly issued by the non

applicant was not honoured by the banker of the non applicant.

4. The complainant filed his affidavit in examination-in-

chief on 02.02.2012. Thereafter for one reason or the other, the

cross-examination of the complainant was deferred. Ultimately,

the non applicant-accused cross-examined the complainant on

01.12.2012.

5. On 01.12.2012, the complainant also examined his

witness by name Sharad Chaudhari. After completion of the

examination-in-chief of Sharad, the said witness made himself

available for cross-examination on behalf of the non applicant-

accused. The opportunity to cross-examine Sharad was availed by

the non applicant-accused and he was cross-examined on the very

same day. After cross-examination of Sharad was complete, the

complainant filed pursis by which the complainant pointed out to

the Court that the complainant wishes to close its case.

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6. On 28.01.2013, an application Exh.-85 was filed by the

non applicant-accused. By the said application, a prayer was made

that the application be allowed and Sharad Chaudhari who was

examined and whose cross-examination was finished on

01.12.2012 be recalled for his examination. The reason that was

put forth in the application for recalling of Sharad is that while

cross-examination of Sharad on 01.12.2012, certain questions

were remained to be put to him and therefore, Sharad Chaudhari

be recalled.

7. The learned Magistrate on 05.03.2013 rejected the

application. While rejecting the application, learned Magistrate, in

my view, has correctly observed that nothing was pointed out in

the application except the bare words that "Certain questions

were remained to be put to the witness." This order was set aside

by the learned revisional Court. It appears that the learned

revisional Court has relied upon the law laid down by the Hon'ble

Apex Court in Jahira Habibullah H Sheikh vs. State of Gujarat

2004 (4) SCC 158, Mohanlal Shyamji vs. Union of India; AIR

1991 SC 1346. The learned counsel for the applicant also invited

my attention to a reported case of this Court in Vikas s/o

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Sureshrao Waghmare .vs. Moreshwar s/o Bhausaheb Kadam;

2011 (2) Mh.L.J. (Cri.) 123.

8. No doubt true that the court has ample power to recall

the witnesses by exercising the powers under Section 311 of the

Cr.P.C. However, a party who seeks to invoke the jurisdiction of

this Court under the said section is under an obligation to point

out the compelling circumstances for which the Court should

exercise its jurisdiction under Section 311 of Cr.P.C.

9. On the facts in the present case, the witness sought to

be recalled was thoroughly cross-examined by the learned cross-

examiner when he was under cross-examination. In fact, the

learned Magistrate while rejecting the application has noted in his

order that the cross-examination is at length.

10. An evasive application appears to have been filed on

record by giving a reason that certain questions were remained to

be put inadvertently and therefore the permission for recalling of

the witness may be granted. For that, case of Vikas Waghmare

cited supra is pressed into service. The application Exh.-85 is as

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vague as it can be. It appears that the application is moved with

an intention; (i) to protract the litigation and (ii) to fill up lacunae

which remained while cross-examining the witness. Surely, to fill

up the lacunae is not a reason for which the powers under Section

311 Cr. P. C. should be invoked by a party.

11. In that view of the matter, the learned revisional Court

has committed a mistake in allowing the revision filed on behalf of

the present non applicant. Consequently, following order is

passed.

Judgment and order dated 12.01.2016 in Criminal

Revision No. 64/2013 passed by Additional Sessions Judge, Akola

is quashed and set aside. The order dated 05.03.2013 below

Exh.85 in S.C.C.No.777/2010 passed by Judicial Magistrate First

Class Court No.3, Akola is restored. The application Exh.-85 in

S.C.C.No.777/2010 pending on the file of Judicial Magistrate First

Class Court No.3, Akola is rejected.

Rule is made absolute in the above terms. No order as

to costs.

JUDGE

kahale