Bombay High Court
Niketan Dilip Paldhe vs State Of Maharashtra And Anr on 29 November, 2022
Bench: Amit Borkar
3-wp-3369-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3369 OF 2022
Niketan Dilip Paldhe ... Petitioner
V/s.
State of Maharashtra & Anr ... Respondents
Mr. Adithya R. Iyer a/w Mr. Nyayesh Bharucha & Advit
Helekar for the petitioner.
Mr. A.R. Patil APP for the State.
Ms. Apurva Sanghkar i/b Link Legal for the Respondent
No.2.
CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 29, 2022
P.C.:
1. The petitioner, who is original accused in a proceeding under
Section 138 of Negotiable Instruments Act, 1881, is challenging
the order passed by the learned Magistrate allowing the
application seeking recall of witnesses under Section 311 of Code
of Criminal Procedure, 1973. The facts in brief are as under :-
2. The respondent is original complainant who has filed
Complaint No.2133 of 2018. During trial the complainant
examined himself. During the cross-examination of the
complainant, the complainant stated as under :
"22. ... I have documentary evidence to show that there
were transactions between the complainant and accused
no.02. I can produce on record invoices raised by the
complainant against accused nos. 01 and 02."
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3. On the basis of the said statement, the complainant filed an
application under Section 311 of the Code of Criminal Procedure,
1973 seeking recall of complainant himself to produce two (2)
documents in the form of invoices executed by the complainant in
favour of the accused.
4. The petitioner opposed the application stating that earlier
application filed by the complainant under Section 311 was
allowed the complainant has examined himself. Thereafter, the
petitioner's statement under Section 313 of Code of Criminal
Procedure, 1973 was recorded. The proceeding was fixed for final
argument and at that stage allowing application would amount to
fill up lacunae.
5. The learned Magistrate by the impugned order allowed
recalling of the complainant for the limited purpose of production
of invoices mentioned in paragraph 22 of the cross-examination.
The petitioner had, therefore, filed present petition.
6. The learned advocate for the petitioner submitted that the
statement made in the cross-examination cannot be the basis to
recall the witnesses. Essential ingredients of Section 311 of the
Code of Criminal Procedure, 1973 are not fulfilled. Once the
complainant was granted an opportunity in exercise of powers
under Section 311 of the Code of Criminal Procedure, 1973 and
the statement of the accused was recorded as required under
section 313 the learned Magistrate could not have allowed the
application.
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7. Per contra, the learned advocate for the accused invited my
attention to the relevant extract of the cross-examination quoted
above and submitted that the accused having called upon the
complainant to produce invoices, the application was filed and,
therefore, the learned Magistrate was justified in allowing the
application.
8. Having considered the submissions made on behalf of the
both the sides, following factual scenario emerges :-
a) The earlier application filed by the complainant under
Section 311 of the Code of Criminal Procedure, 1973
was allowed;
b) The statement of accused under 313 of the Code of
Criminal Procedure, 1973 was recorded;
c) The complaint was fixed for final arguments.
9. In the light of the factual scenario mentioned above, it needs
to be noted that the suggestion in the cross-examination by the
accused wherein the complainant shown his willingness to produce
on record the invoices does not create any right in favour of the
complainant to file an application under Section 311 of the Code
of Criminal Procedure, 1973. One opportunity to recall witness to
bring on record material crucial for decision in a complaint was
already granted to the complainant by passing order dated 15 th
November 2021 whereby earlier application under Section 311 of
the Code of Criminal Procedure, 1973 was allowed by the learned
Magistrate. The statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 was recorded. The matter was
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fixed for final arguments. It is well settled law that the power
under Section 311 of the Code of Criminal Procedure, 1973 has
been conferred on the learned Magistrate for advancing justice
only in a case where the application is bona fide. The delay in trial
is also relevant factor. It is well settled that power to recall is not
the matter of course. The discretion has to be exercised by the
Court judiciously to prevent injustice unless there are tangible
reasons to show how fairness of trial suffered without recall.
Merely because certain suggestions in the cross-examination are
raised on behalf of the accused, does not create right in favour of
the complainant to file such application, particularly when the
complainant had exercised right under Section 311 of the Code of
Criminal Procedure, 1973 on earlier occasion.
10. It needs to be noted that once the production of invoices is
allowed, the invoices by itself cannot be read in evidence.
Therefore, the complainant would file an application to examine
himself to prove the invoices which would result in re-trial of the
case. Therefore, in my opinion, the learned Magistrate was not
justified in allowing the application.
11. The Judgment of the Apex Court in the case of Varsha Garg
Vs. The State of Madhya Pradesh reported in 2022 SCC OnLine SC
986 is distinguishable on facts, as in the facts of the said case the
documents sought to be proved by the prosecution were crucial for
fair trial of the accused. In the facts of the said case the
prosecution has not filed earlier an application under Section 311
of the Code of Criminal Procedure, 1973 which was allowed. The
said facts distinguish the ratio laid down by the Apex Court.
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12. In that view of the matter, the learned Magistrate is not
justified in exercising discretion by allowing recall of the
complainant for production of two (2) documents in the form of
invoices. Hence, following Order :-
The impugned Judgment and Order dated 1st August, 2022
passed by the learned Additional Chief Metropolitan Magistrate's
33rd Court at Ballard Estate, Mumbai allowing application under
Section 311 of the Code of Criminal Procedure, 1973 dated 14 th
July 2022 is quashed and set aside.
13. Rule is made absolute in the above terms. No costs.
(AMIT BORKAR, J.)
