Narmada Shri Biotech Thr. Its ... vs Shree Varu Traders Cotton ...
2023 Latest Caselaw 526 Bom

Judgment                                    1              24.apl.1615.2022 judg.odt




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

           CRIMINAL APPLICATION (APL) NO.1615 OF 2022

      Narmada Shri Biotech,
      Through its Prop. Urmila Suresh
      Jonwal (Mina),
      8, Sojar Nagar, Nemawar Road,
      Indore (MP)

     2. Sau. Urmila Suresh Jonwal (Mina),
      Aged : 48 Yrs., Occ.: Business,
      R/o. 8, Sajn Nagar, Nemawar Road,
      Indore, (MP)

     3. Yogesh Bhagwansingh Shire,
      Aged : 40 Yrs., Occ. : Business,
      R/o. Rajput Pura, Akola,
      Tq. & Dist. Akola                                   .... APPLICANTS

                                  // VERSUS //

      Shree Varu Traders,
      Cotton Merchant and Commission
      Agent, 230/232, Mahavir Plaza,
      Rallies Plot, Amravati.

    Prop. Sau. Sarika Suyog Laddha,
     Aged :35 Yrs., Occ. Business,
     R/o. University Camp, Amravati,
     District Amravati,
     Through Power of Attorney,
     Shrinarayan Kisanlalji Laddha,
     Aged :63 Yrs., Occ. Business,
     R/o. University Campus, Opposite to
     SBI Camp Branch, Amravati           .... NON-APPLICANTS
__________________________________________________________
      Shri P. R. Agrawal, Advocate for the applicants
      Shri R. N. Badhe, Advocate for the non-applicants
__________________________________________________________
 Judgment                              2               24.apl.1615.2022 judg.odt




                     CORAM : G. A. SANAP, J.

DATED : 16th JANUARY, 2023

ORAL JUDGMENT :

1)             Heard.



2)             ADMIT. Heard finally by consent of learned Advocate for

the parties.



3)             In this application, made under Section 482 of the Code of

Criminal Procedure, 1973 (For short 'Cr.P.C.'), the applicants, who are

the accused Nos. 1, 2 and 3 in the Summary Criminal Case No.2612 of

2013, filed under Section 138 of the Negotiable Instruments Act, 1881

(For Short 'N. I. Act'), have questioned the correctness of the order

dated 22/11/2022 passed by the learned Additional Sessions Judge,

Amravati, whereby the revision, challenging the order passed by the

Judicial Magistrate First Class dated 19/09/2022, came to be dismissed.

The learned Magistrate vide order dated 19/09/2022 had rejected the

application at Exh. 175 made by the applicants/accused under Section

311 of the Cr.P.C. for recalling the witness No.1 for further cross

examination. In this order, the parties would be referred by their

nomenclature in the complaint.

 Judgment                             3                  24.apl.1615.2022 judg.odt




4)          The complainants filed the complaint against the accused

persons under Section 138 of the N. I. Act. The cheque issued under

the signature of accused No.3 for Rs.44,23,600/- was dishonored on

account of insufficient funds in the account of the drawer. The notice

before filing the complaint was issued. The amount of cheque was not

paid within 15 days from the date of the receipt of the notice. The

complainants, therefore, filed the complaint. The witness No.1, the

power of attorney holder of the complainants filed his affidavit of

examination-in-chief in June 2017. The documents were exhibited on

22/07/2019. His cross was completed on 21/09/2021. The affidavit of

examination-in-chief of witness No.2 was filed on 11/06/2018. He was

cross examined on 13/01/2022. The statement of the accused under

Section 313 of the Cr.P.C. was recorded on 07/07/2022. Thereafter, the

matter was posted for recording the defence evidence.

5) The accused persons appointed the new Advocate in place

of their earlier Advocate on 18/08/2022. The application under Section

311 of the Cr.P.C. came to be filed on 16/09/2022. The main ground

stated in the application for recalling the witness No.1 for cross

examination is that the previous Advocate representing the accused

persons hurriedly completed the cross examination. The previous Judgment 4 24.apl.1615.2022 judg.odt

Advocate did not cross examine the witness No.1 on the point of service

of demand notice, signature of the accused No.2 on the cheque in

question, the authority to accused No. 3 being an authorized signatory

of the cheque on behalf of the accused No.1 Firm and the details and

particulars of the purchase bills. It was also stated that the documents

Exh. Nos. 3, 19, 70, 104 and 128 were not supplied to the accused. The

previous Advocate conducted the cross examination without going

through the documents. It was stated in the application that for just

decision of the case the further cross examination is necessary. The cross

examination is not intended to fill up the lacunae. It was submitted that,

therefore, the witness No.1 would be required to be recalled for further

cross examination.

6) Learned Magistrate heard the arguments on behalf of the

accused as well as the complainants. Learned Magistrate found that there

was no substance in the application. The application was made at

belated stage. The necessary facts sought to be confronted with the

witness No.1 in the further cross examination have already been dealt

with in the cross examination by the previous Advocate. The cross

examination on recalling is proposed on certain undisputed facts.

Learned Magistrate also found that all documents were provided well in Judgment 5 24.apl.1615.2022 judg.odt

advance to the accused persons and therefore, the grievance that their

Advocate had not received the documents and cross examined the

witness No.1 without documents is not acceptable. Learned Magistrate,

therefore, rejected the application. The accused persons preferred a

revision application against this order passed by the learned Magistrate.

Learned Additional Sessions Judge, Amravati by his order dated

22/11/2022 dismissed the revision application by holding that no

illegality is committed by the learned Magistrate while rejecting the

application. The above two orders are questioned in this application.

7) I have heard the learned Advocate for the accused and

learned Advocate for the complainants. Perused the record and

proceedings.

8) Learned Advocate for the accused submitted that in the

application made under Section 311 of the Cr.P.C. sufficient reasons have

been stated in support of the prayer to allow the cross examination of

witness No.1 by recalling him. Learned Advocate submitted that the

Courts below have not taken the material on record into consideration

and rejected the prayer made by the accused persons. Learned Advocate

further submitted that further cross examination of the witness No.1 is Judgment 6 24.apl.1615.2022 judg.odt

necessary for complete adjudication of the matter. Learned Advocate

submitted that there was carelessness on the part of the previous

Advocate in conducting the overall matter and particularly in conducting

the cross examination. Learned Advocate submitted that newly engaged

Advocate by the accused persons, on going through the record, found

that the witness No.1 was not cross examined consistent with the defence

of the accused persons. Learned Advocate submitted that the important

documents were not provided to the Advocate appearing for the accused

persons. Learned Advocate submitted that the grievance made by the

Advocate was not properly appreciated by the Courts below. It is,

therefore, submitted that by setting aside the orders passed by the Courts

below the application is required to be allowed.

9) Learned Advocate for the complainants submitted that the

grounds put forth in the application were not at all justifiable. Learned

Advocate submitted that the previous Advocate was unnecessarily

blamed by the accused persons. Learned Advocate for the complainants

took me through the evidence and particularly the cross examination of

the witness No.1 and pointed out that on all the relevant aspects the

witness No.1 was cross examined. Learned Advocate took me through

the contents of the application made under Section 311 of the Cr.P.C. and Judgment 7 24.apl.1615.2022 judg.odt

pointed out that some of the facts sought to be asked to the witness No.1

in further cross examination are undisputed and some of the facts have

already been dealt with. Learned Advocate submitted that the

chronology of the events from the date of filing of the complaint till

rejection of the application indicates that there was deliberate intention

on the part of the accused persons to delay the completion of the trial. In

order to substantiate this submission, the learned Advocate drew my

attention to the relevant dates. Learned Advocate submitted that change

of the Advocate by the party is never ending exercise. Learned Advocate

submitted that every Advocate engaged by the party is presumed to be

competent. Learned Advocate submitted that on change of the Advocate

it is easy for the party to blame the previous Advocate. In short, learned

Advocate submitted that no case is made out for grant of an application.

He, therefore, supported the orders passed by the Courts below.

10) Learned Advocates for both the parties in support of their

submissions placed heavy reliance on the decision in the case of Varsha

Garg .v/s. The state of Madhya Pradesh and Ors.1. In this case the

Hon'ble Apex Court has held that the application under Section 311 of

C.rP.C. cannot be dismissed merely on the ground that it will lead to

1 AIR 2022 SC 3707 Judgment 8 24.apl.1615.2022 judg.odt

filling in the lacunae in the case. It is held that essentiality of the evidence

of a person who is to be examined coupled with the need for the just

decision of the case constitute the touchstone which must guide the

decision of the Court. The broad powers under Section 311 are to be

governed by the requirement of justice. The power must be exercised

wherever the Court finds that any evidence is essential for the just

decision of the case. It is further held that the statutory provision goes to

emphasise that the Court is not a hapless bystander in the derailment of

justice.

11) In order to consider the applicability of the proposition of

law laid down in this case to the case on hand, it is necessary at the outset

to make a mention of some of the dates. The affidavit of examination-in-

chief of the witness No.1 was filed on 02/06/20217. The copy of this

affidavit was received by the Advocate for the accused on 22/01/2019.

The documents were exhibited on 22/07/2019. The Advocate for the

accused cross examined witness No.1 on 21/09/2021. It is to be noted

that earlier on 06/04/2018 the accused and the Advocate remained

absent and therefore, the cross examination was treated as closed.

However, the learned Magistrate on the application made by the

Advocate for the accused persons was pleased to set aside the said order.

Judgment 9 24.apl.1615.2022 judg.odt

It is further seen on perusal of roznama that on number of dates after

exhibiting the documents and before conducting the cross examination

the Advocate remained absent. The affidavit of examination-in-chief of

witness No.2 for the complainants was submitted on 17/07/2018. The

Advocate for the accused received the copy of the same on 22/01/2019.

The witness No.2 was cross examined on 13/01/2022. A grievance is

made that all the documents were not provided to the Advocate for the

accused. Learned Advocate for the accused submitted that on the list of

documents there is no endorsement with regard to the receipt of the

documents by the Advocate for the accused. It is submitted that the

previous Advocate conducted the cross examination without collecting

the documents. The record does not support this submission. Advocate

appearing for the accused was present when the documents were

exhibited. Therefore, the grievance of the accused that the Advocate

conducted the cross examination without collecting the documents is

without substance. It is to be noted that if the documents had not been

actually furnished, the Advocate could have made grievance before the

Magistrate. The Advocate could have made a request to defer the cross

examination for want of documents placed on record by the

complainants. The rozanma does not support his contention. Therefore, Judgment 10 24.apl.1615.2022 judg.odt

on this ground the Courts below were right in accepting the case of the

complainants.

12) In order to consider the necessity of recall of witness No.1

for cross examination to deal with certain facts remained to be dealt with

in the earlier cross examination, I have gone through the evidence. It is

to be noted that the notice issued by the complainants was not replied.

The postal envelopes sent at the address of the accused persons came

back unserved. The envelopes are placed on record at Exh. 117, 119 and

121. The necessary averments with regard to service part of the notice

have been made in the complaint. It, therefore, cannot be accepted that

by placing these documents on record the accused were taken by surprise.

As far as signature of accused No.2 is concerned, in the complaint it is

stated that the cheque in question was signed by the accused No.3.

Witness No.2 examined by the complainants is from the Bank. Said

witness has stated that the accused No. 3 had signed the cheque. The

question of cross examination of witness No.1 of complainants on this

point would not arise because it is not the case of the complainants that

accused No.2 is the signatory of the cheque. As far as the authority of

the accused No. 3 to sign the cheque is concerned, the same has been

sufficiently dealt with in the cross examination. As far as the bills are Judgment 11 24.apl.1615.2022 judg.odt

concerned, the suggestions have been put to the witness No.1 in the cross

examination. It is, therefore, seen on perusal of the record that all the

aspects stated to have gone uncontroverted in the cross examination, have

been sufficiently dealt with. The reasons, in my view, put forth to recall

the witness No.1 for further cross examination are therefore not

supported by the material.

13) It is to be noted that after engaging the new Advocate the

accused have made this application. Even if it is accepted that the

previous Advocate was discharged, in my view, that itself would not be a

ground to give a cause of action for making such an application. The

change of Advocate by party in the litigation is a never ending process. In

this context, I may usefully refer the decision of the Hon'ble Apex Court

in the case of AG .v/s. Shiv Kumar Yadav and Anr. 1, as well as the

decision in the case of State of Haryana Vs. Ram Mehar and ors 2,

wherein it is held that the power under Section 311 if tested on the anvil

of violation of Article 21, cannot be exercised on the ground of change of

the defence Advocate and failure to put certain questions to the witnesses

by the erstwhile advocate. In the case of A.G. Vs. Shiv Kumar Yadav and

Anr. (supra), the Hon'ble Apex Court has observed that counsel is

1 2015 AIR SCW 5302 2 AIR 2016 SC 3942 Judgment 12 24.apl.1615.2022 judg.odt

normally presumed to be competent to conduct the matter particularly

when a counsel is appointed by choice of a litigant. It is further observed

that if such principle is taken to logical end then the retrial may follow

on every change of counsel and the same can have serious consequences

on conduct of trials and criminal justice system.

14) In my view, the decisions of the Hon'ble Apex Court, in the

above cases, are applicable in this case. In this case, the newly engaged

advocate made general statements that certain relevant matters remained

to be dealt with in the cross-examination. The aspects which are stated to

have remained to be dealt with, in the opinion of the learned Magistrate

have already been taken care of in the cross examination conducted by

erstwhile Advocate. This observation finds support from record.

15) It is to be noted that after change of the Advocate the

application was made. It is to be noted that on the date of this

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

was recorded. The matter was posted for the evidence of the defence

witness. In my view, looking at the facts from any angle the same would

show that the application was not bonafide. It seems to have been made

just to prolong the trial. I am conscious of the fact that while deciding Judgment 13 24.apl.1615.2022 judg.odt

such application a hyper-technical approach cannot be adopted. However,

that does not mean that the prayer for recalling the witness can be

granted merely for asking and in a routine manner. The party seeking

recalling of a witness must make out a case for the same. It must be

demonstrated that recalling of witness for further examination is

necessary for just decision of the case. Therefore, in my view, the law laid

down in the decision in the case of Varsha Garg .v/s. The State of

Madhya Pradesh and Ors. (supra) is of no help to the case of the accused

persons. On the basis of the proposition laid down in this case, the

learned Advocate for the complainants satisfied this Court that the case in

question is not a fit case to warrant the recalling of the witness No.1.

16) In view of the above, I am of the view that there is no

substance in the application. On careful perusal of the order passed by

the learned Additional Sessions Judge as well as the order passed by the

learned Magistrate it is seen that the Courts below have not committed

any mistake or illegality. I, therefore, conclude that there is no substance

in the application. The application stands dismissed, accordingly.

Signed By:NAMRATA YOGESH DHARKAR ( G. A. SANAP, J.) P. A.

High Court Nagpur               Namrata
Signing Date:19.01.2023 19:02