Bombay High Court
Jitenra Murlidhar Gulwani vs Vinod Jivraj Shah Huf A Hindu Undivided ... on 18 December, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2023:BHC-AS:38358
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION [STAMP] NO.10778 OF 2023
Jitendra Murlidhar Gulwani .....Petitioner
Versus
Vinod Jivraj Shah HUF .... Respondent
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Ms. Jayshri Rajemahadik, Advocate a/w. Kevin Gala i/b.
Vishal Jagwani for the Petitioner.
Ms. Henna P. Shah, Advocate for the Respondent.
Ms. Sangita D. Shinde, APP for the Respondent-State.
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CORAM : SARANG V. KOTWAL, J.
DATE : 18th DECEMBER, 2023
P.C. :
1. The Petitioner is the original accused in C.C.
No.99/SS/2021 before the Metropolitan Magistrate, 59th
Court, Kurla, Mumbai. The complaint was filed by the
Respondent No.1 herein for dishonor of cheque for Rs.5
Lakhs. The prosecution is for commission of the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'N.I. Act').
2. The trial has progressed. The complainant has
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Deshmane(PS)
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closed his evidence and the matter is posted for recording
statement of the accused under section 313 of Cr.P.C. At this
belated stage, the Petitioner preferred an application on
25.5.2023 for recalling the complainant for cross-
examination. That Application, filed below Exhibit-29, was
rejected by the learned Magistrate vide his order dated
25.5.2023. The Petitioner has challenged that order in the
present Petition.
3. Heard Ms. Jayshri Rajemahadik, learned counsel
for the Petitioner, Ms. Henna Shah, learned counsel for the
Respondent and Ms. Sangita Shinde, learned APP for the
Respondent-State.
4. The complaint, filed by the Respondent No.1,
mentions that the Petitioner was working in a Chemist Shop
near the house of the complainant. It is his case that the
complainant used to visit that Chemist Shop regularly and
thus got acquainted with the Petitioner. The Petitioner made
certain representations that he would take over the business
of that Chemist Shop as the owner Ajit R. Shah had full faith
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in him. The Petitioner induced the Respondent No.1 to
invest Rs.47,50,000/- in the business. However, the
Petitioner did not take any steps to induct the complainant
as his partner. After the constant follow-up, the Petitioner
issued a letter dated 20.8.2021 wherein it was recorded that
the Petitioner had taken a loan of Rs.19 Lakhs by cheque.
Out of which, Rs.14 Lakhs were taken from Mr. Vinod J.
Shah from his own personal account and Rs.5 Lakhs were
taken from the account of the complainant, which was HUF
of which said Vinod Shah was the Karta. The Petitioner had
issued a cheque bearing No.074007 dated 27.10.2021 for
Rs.5 Lakhs drawn on SVC Co-operative Bank Limited, Dadar
(East) Branch, Mumbai. The subject matter of the complaint
was dishonor of that cheque. The cheque was deposited on
28.10.2021. It was dishonored on 29.10.2021. Thereafter,
the statutory demand notice was issued on 13.11.2021 and
since the payment was not made, the complaint was filed.
The trial proceeded and the examination-in-chief of the
complainant was filed in the form of affidavit under section
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145 of N.I. Act on 13.5.2022. Thereafter the cross-
examination was conducted on behalf of the Petitioner on
3.4.2023. The cross-examination was in respect of the
background of the loan transaction. There was cross-
examination about the ink on the cheque. The signatures on
some documents were disputed. On this line of cross-
examination, it was completed on 3.4.2023. After that on
25.5.2023 the Petitioner filed an application for permission
to appoint a new Advocate. The new Advocate came on
record on 25.5.2023 and on that same day, he preferred an
application for recalling the complainant PW-1 for cross-
examination. The complaint was filed by Vinod Jivraj Shah
HUF. Mr. Vinod Shah was its Karta and he was examined as
PW-1. He was cross-examined also, as mentioned earlier.
5. The Petitioner wanted to cross-examine the
complainant further and therefore, he preferred an
application under Section 311 of Cr.P.C. The learned
Magistrate rejected that application by a reasoned order
passed below Exhibit-29 on 25.5.2023 itself.
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6. Learned counsel for the Petitioner submitted that
some important questions were not asked by the earlier
Advocate of the Petitioner. That has caused prejudice to the
Petitioner. There are contradictions in the contentions of the
complainant, which are necessary to be brought on record
through further cross-examination. She submitted that the
Petitioner has no intention to prolong the trial and he was
ready to conduct the cross-examination expeditiously.
7. Learned counsel for the Respondent No.1
opposed these submissions. She pointed out that the learned
Magistrate has passed a reasoned order. She supported the
impugned order. She relied on the judgment of the Hon'ble
Supreme Court in the case of AG Vs. Shiv Kumar Yadav and
others which was decided on 10.9.2015 passed in Criminal
Appeal Nos.1187-1188/2015. The same judgment was
referred to by learned trial Judge, which was reported in
(2016) 2 SCC 402.
8. I have considered these submissions. From the
record it appears that the Petitioner's earlier Advocate had
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conducted the cross-examination on 3.4.2023. The
Petitioner did not raise any grievance on that day that the
cross-examination was not according to his instructions.
Thereafter he changed his Advocate on 25.5.2023. The
Application, preferred under section 311 of Cr.P.C., on behalf
of the Petitioner mentions that the earlier advocate did not
ask many material questions. The Petitioner made a
grievance that his earlier advocate did not attend the case
diligently. On one occasion even an NBW was issued against
the Petitioner. It was cancelled subsequently. The application
further mentions that the evidence is required to be brought
on record which was essential to the just decision of the
case. Beyond that there is nothing mentioned in the
application as to on what point the cross-examination was to
be conducted.
9. The learned Magistrate observed that after
completion of the cross-examination, three dates were over
and no application for recall was moved by the Petitioner
during that time. While arguing the Petitioner had disputed
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two letters dated 20.8.2021 and 11.12.2021 purportedly
issued by him. The learned Magistrate observed that the
Petitioner had earlier categorically admitted those two
documents. Therefore there was no question of disputing
those documents subsequently. He further observed that the
Petitioner was delaying the case. No grievance was made by
the Petitioner on three dates against his Advocate and,
therefore, it clearly shows that the reason given for recall of
the complainant was an afterthought. The learned
Magistrate relied on the aforementioned judgment of the
Hon'ble Supreme Court.
10. I do not see any infirmity in the reasons given by
the learned Magistrate. The Hon'ble Supreme Court in the
concluding paragraph of the judgment referred to
hereinabove, has observed that in such cases for recalling the
witness under Section 311 of Cr.P.C., the Court has to keep in
mind not only the need for giving fair opportunity to the
accused but also the need for ensuring that the victim of the
crime is not unduly harassed. It was further observed that
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mere change of counsel cannot be ground to recall the
witnesses. If there was no patent error in the approach
adopted by the trial Court rejecting the prayer for recall and
if there was no clear injustice if such prayer was not granted,
then such an application would not be maintainable.
. In the present case, the complainant is eighty
years of age and he is suffering from kidney related medical
problems. The Petitioner had sufficient opportunity to cross-
examine the PW-1. The approach of the learned trial Judge
is not incorrect and, therefore, the impugned order cannot
be interfered with. There is substance in the observation of
the learned Magistrate that the Petitioner is trying to prolong
the matter.
11. In these circumstances I do not find merit in the
present Petition. The Petition is accordingly dismissed.
(SARANG V. KOTWAL, J.)
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