Raju Natthuji Badhe vs Shyam Ajay Mohta Thr. Poa Holder ...
2023 Latest Caselaw 3316 Bom

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

            CRIMINAL APPLICATION (APL) NO.388 OF 2023


            Raju Natthuji Badhe,
            Aged 49 Yrs., Occ.: Business,
            Prop. Anuja Seeds
            R/o. 3rd Floor, Shankambari Complex,
            Near Datta Mandir, Behind Jasnagara
            Hotel, Ramdaspeth, Taluka and
            District Akola                                                   .... APPLICANT

                                       // V E R S U S //

            Shyam Ajay Mohta,
            Aged : 37 Yrs., Occ.: Advocate,
            Karta of Shyam Ajay Mohta H.U.F.
            Through his Power of Attorney Holder,
            Ajay Vitthaldasji Mohta,
            Aged about 63 Yrs., Occ. Advocate,
            R/o. Giriraj, Geeta Nagar, Near Bye-
            pass Road, Akola, Taluka and District
            Akola.                                ... NON-APPLICANT

  --------------------------------------------------------------------------------------------------
            Mr. S. V. Sirpurkar, Advocate for the applicant
            Mr R. M. Sharma, Advocate for the non-applicant
 --------------------------------------------------------------------------------------------------

                 CORAM : G. A. SANAP, J.

DATE : 03/04/2023

ORAL JUDGMENT :

1. Heard.

40.apl.388.2023.judge.odt

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

3. In this application, made under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as "the

Cr.P.C."), the challenge is to the order dated 01.03.2023 passed

below Exhs. 71 and 73 in Summary Criminal Case No. 812 of

2020.

4. The facts are as follows:

The applicant is the accused and the respondent is

the complainant. In this judgment, they are referred by their

nomenclature in the complaint. The accused is facing prosecution

for commission of offence under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as "the N. I. Act.").

The complainant adduced his evidence. After recording the

evidence of the complainant, the case was fixed for recording

statement of accused under Section 313 of the Cr.P.C. The

statement of the accused was recorded on 20.08.2022. Thereafter,

40.apl.388.2023.judge.odt

the matter was posted for defence evidence. The accused did not

adduce defence evidence and therefore, his evidence was treated as

closed on 04.11.2022.

5. The accused made an application at Exh. 71 under

Section 311 of the Cr.P.C. for recalling PW-1 for further cross

examination. Similarly, on the same date he made an application at

Exh. 73 seeking permission to adduce defence evidence by setting

aside the order dated 04.11.2022. Learned Magistrate by an order

dated 01.03.2023 rejected the application at Exh. 71. The

application at Exh. 73 was also rejected subject to cost of Rs.2000/-.

The accused has challenged these orders in this application.

6. I have heard learned Advocates for the parties.

Perused the record and proceedings.

7. Learned Advocate for the accused submitted that

the earlier advocate of the accused failed to cross examine the

witness PW-1 on all the material points. Learned Advocate

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submitted that learned Magistrate has not considered the ground

stated in the application and rejected the said application. Learned

Advocate submitted that it has caused injustice to the accused.

Learned Advocate further submitted that in order to meet the ends

of justice, it is necessary to grant sufficient opportunity to the

accused first to recall the PW-1 for further cross examination and

then to allow him to lead evidence in defence. Learned Advocate

submitted that approach of the trial Court is not consistent with the

law.

8. As against this, learned Advocate for the

complainant submitted that the accused throughout this trial has

delayed the hearing of the case. Learned Advocate submitted that

learned Magistrate has been kind enough to grant sufficient

opportunity and indulgence to the accused to exercise his legal

rights. Learned Advocate further submitted that the learned

Magistrate on number of occasions in his order recorded that

deliberate attempt has been made by the accused to delay the trial.

Learned Advocate further submitted that the accused has no defence

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in the case and therefore, in order to delay the disposal of the case

repetitively he has been making the applications. Learned Advocate

submitted that no interference is warranted in the order passed by

the learned Magistrate.

9. It is to be noted that before granting an application

under Section 311 of the Cr.P.C., the Court must be satisfied that

recall of the witness for further cross examination is necessary for

just decision of the case. It is further pertinent to note that the

witness cannot be recalled in a routine manner and as a matter of

course. It is further pertinent to note that for recall of important

witness for examination, the Court can suo moto exercise this

power. However, in any case, the Court must record a satisfaction

that either the recall of already examined witness or examination of

fresh witness is necessary for the just decision of the case.

10. In this case, the trial Court granted sufficient

opportunity to the accused to cross examine PW-1 and PW-2. The

copy of the roznama has been placed on record with the reply. The

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facts recorded in the roznama would show beyond doubt that

throughout the trial and particularly after recording the evidence of

PW-1, the accused made repetitive applications seeking

adjournment. Perusal of the order would show that on number of

occasions the learned Magistrate was forced to issue non bailable

warrant against the accused. After recording statement of the

accused under Section 313 of the Cr.P.C., the matter was posted for

defence evidence. The accused did not adduce defence evidence.

Learned Magistrate, therefore, by his order dated 04.11.2022

treated the defence evidence as closed. The accused, after

04.11.2022, did not take steps. Thereafter, the matter was posted

for argument. The accused made the applications at Exh. 71 on

21.02.2023 and Exh. 73 on 01.03.2023. Both these applications

were rejected on 01.03.2023.

11. The question is whether any ground was stated in

the applications at Exh. 71 and 73 to justify the prayer made in

those applications. The accused, as can be seen from the record, did

not act promptly to exercise his right provided under the law. He

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failed to adduce his evidence in defence despite granting time. He

failed to make use of the opportunity. From 04.11.2022, he waited

for two months to make the application for recalling of witness. The

ground stated in the application for recalling of the witness is that

the previous Advocate of the accused failed to cross examine the

witness on all the material points. I have perused the cross

examination. Perusal of the cross examination would show that it

has been exhaustive cross examination on all the points. The

accused was supposed to make such an application at the earliest

and in any case before recording his statement under Section 313 of

the Cr.P.C. Similarly, despite granting time by the Court he did not

adduce evidence in defence. This fact, in my view, would reflect

upon the malafides of the accused.

12. It is observed that in such proceedings no stone is

left unturned by the accused to see that such matter is delayed for

one reason or the other. In maximum such matters, at the fag end

of the proceeding, either for recalling the complainant for further

cross examination or for such other innocuous relief, the

40.apl.388.2023.judge.odt

applications are made and the matters are delayed. In my view, in a

genuine cases the application made under Section 311 of the

Cr.P.C. has to be considered and granted. But, if it is found that the

case in question is not genuine and the application is made only for

the purpose of causing delay, then such an attempt has to be nip in

the bud. In this case, in my view, the attempt made by the accused

is nothing but a delaying tactics. Therefore, I do not see any reason

to interfere with the order passed by the learned Magistrate. The

order on consideration from all angles does not indicate that it is

illegal order. As such, the application stands dismissed.

13. The criminal application stands disposed of,

accordingly.

14. Rule stands discharged. No costs.

(G. A. SANAP, J.)

Namrata