Bombay High Court
Manu Power Equipments Pvt Ltd And ... vs The State Of Maharashtra And Anr on 18 April, 2023
Bench: Amit Borkar
2023:BHC-AS:11751
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Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1375 OF 2023
Manu Power Equipments Pvt. Ltd. &
Anr. ... Petitioners
V/s.
The State of Maharashtra & Anr. ... Respondents
Mr. Balwant Salunkhe for the Petitioner.
Mr. M.G. Patil, APP for the respondent No.1/State.
Mr. Benny Joseph with Ms. Pallavii Kaamath i/by B.J.
Law Offices LLP for the respondent No.2.
CORAM : AMIT BORKAR, J.
DATED : APRIL 18, 2023
P.C.:
1. The petition is directed against the judgment and order
dated 21st January 2023, passed by Metropolitan Magistrate 7 th
Court, Dadar, Mumbai below Exhibit 149 along application under
311 of Code of Criminal Procedure, 1973. The petition arises out
of proceeding under Section 138 of Negotiable Instruments Act,
1881. The accused during the course of trial denied the signature
over the cheque. He also denied delivery of subject goods. The
defense evidence was closed on 20th August 2022.
2. Since the accused denied the existence of legally recoverable
debt and the signature on the cheque, the respondent
No.1/complainant while an application under Section 311 of Code
of Criminal Procedure to examine 5 witnesses to prove the cheque
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and delivery of goods.
3. The petitioner challenged and objected the reasons of
complainant or contending that such application is not
maintainable after the accused has examined its witnesses and
closed evidence. Statement under Section 313 of Code of Criminal
Procedure, 1973 has also been recorded. Allowing such application
would tantamount to fill up of lacuna. The application deserves to
be rejected.
4. The Magistrate relying on the judgment in the case of
Rajendra Prasad Vs. Narcotic Cell reported in AIR 1999 SC 2292
held that the Apex Court permitted a party to the trial to cure
errors, if proper evidence is adduced. Relevant material was not
brought on record inadvertently. The Court should be
magnanimous in permitting such mistake to be rectified. It was
further held that after all function of the criminal justice is
administration of criminal justice and not to count errors
committed by the parties or to find out and declare who among
the parties performed better.
5. The Apex Court in paragraphs 8 and 16 of Natasha Singh Vs.
Central Bureau of Investigation (State), reported in 2013 (5) SCC
741 has held as under :-
"8. Section 311 CrPC empowers the court to summon a
material witness, or to examine a person present at "any
stage" of "any enquiry", or "trial", or "any other proceedings"
under CrPC, or to summon any person as a witness, or to
recall and re-examine any person who has already been
examined if his evidence appears to it, to be essential to the
arrival of a just decision of the case . Undoubtedly, CrPC has
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conferred a very wide discretionary power upon the court in
this respect, but such a discretion is to be exercised
judiciously and not arbitrarily. The power of the court in this
context is very wide, and in exercise of the same, it may
summon any person as a witness at any stage of the trial, or
other proceedings. The court is competent to exercise such
power even suo motu if no such application has been filed by
either of the parties. However, the court must satisfy itself,
that it was in fact essential to examine such a witness, or to
recall him for further examination in order to arrive at a just
decision of the case.
16. Fair trial is the main object of criminal procedure, and
it is the duty of the court to ensure that such fairness is not
hampered or threatened in any manner. Fair trial entails the
interests of the accused, the victim and of the society, and
therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must be
ensured as this is a constitutional, as well as a human right.
Thus, under no circumstances can a person's right to fair trial
be jeopardised. Adducing evidence in support of the defence
is a valuable right. Denial of such rights would amount to the
denial of a fair trial. Thus, it is essential that the rules of
procedure that have been designed to ensure justice are
scrupulously followed, and the court must be zealous in
ensuring that there is no breach of the same. [ Talab Haji
Hussain v. Madhukar Purshottam Mondkar (AIR 1958 SC
376 : 1958 Cri LJ 701), Zahira Habibulla H. Sheikh v. State
of Gujarat (2004) 4 SCC 158 : 2004 SCC (Cri) 999 : AIR
2004 SC 3114, Zahira Habibullah Sheikh (5) v. State of
Gujrat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8: AIR 2006
SC 1367, Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC
258 : (2007) 1 SCC (Cri) 577, Vijay Kumar v. State of U.P.
(2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC
(L&S) 240, and Sudevanand v. State (2012) 3 SCC 387 :
(2012) 2 SCC (Cri) 179]"
6. In the facts of the present case, the application is filed by the
complainant. In view of defence raised by the accused, as per the
judgment of Apex Court in Natasha Singh (supra) only issue to be
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considered is whether evidence to be adduced is relevant or not. If
such evidence is necessary to arrive at just decision in the case, the
learned Magistrate is duty bound to allow the application under
Section 311 of Code of Criminal Procedure, 1973. It is not the case
of accused that the evidence sought to be adduced is not relevant
or is not necessary to arrive at just decision. The application is
objected on the ground that such application has been filed after
the disclosure of evidence and for recording of statement under
Section 311 of Code of Criminal Procedure, 1973.
7. Considering the nature of proceedings being under Section
138 of Negotiable Instruments Act, 1881, application having been
filed by the complainant, and is necessary to arrive at just decision
the impugned order has not resulted in miscarriage of justice.
8. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
