Bombay High Court
Breach Candy Hospital Trust Through ... vs Manoj Biyani And Anr on 16 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:3736
1-WP955-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 955 OF 2023
Breach Candy Hospital Trust ...Petitioner
Versus
1. Manoj Biyani
2. State of Maharasthra ...Respondents
Mr. Durgesh Jaiswal, i/b Gulistan Dubash and Dhanraj
Lodha, for the Petitioner.
Ms. Rebecca Gonsalves, a/w Anup Lahoti, Chetan Alai and
Rama Somani, i/b Chetan Alai, for Respondent No.1.
Mr. S. R. Aagarkar, APP for the State/Respondent.
CORAM: N. J. JAMADAR, J.
DATED: 16th JANUARY, 2024
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the Counsels for the parties heard finally.
2. This petition under Article 227 of the Constitution of
India, calls in question the legality, propriety and correctness
of an order dated 15th February, 2023 in Complaint
No.496/SS/2016, whereby the learned Magistrate was
persuaded to dismiss an application to re-examine the
complainant Mr. Satish Shroff (CW-1), purportedly under
Section 311 of the Code of Criminal Procedure, 1973 ("the
Code").
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3. Background facts can be stated as under:
(a) The complainant trust runs a Hospital. Mr.
Bansilal Biyani, the father of respondent No.1 - accused, was
admitted in the complainant's hospital for treatment on 29 th
December, 2013. He passed away on 2 nd February, 2014. A
bill for Rs.16,95,000/- was raised by the complainant.
Respondent No.1 accused had drawn cheques for
Rs.9,45,000/- and Rs.7,50,000/- towards discharge of the
said liability. Cheque drawn for Rs.7,50,000/- was honoured.
However, the cheque drawn for Rs.9,45,000/- was returned
unencashed on account of insufficiency of funds. The
complainant addressed demand notice under Section 138 of
the Negotiable Instruments Act, 1881 ("N.I. Act") on 24 th May,
2014. The accused refused to accept the service of the
demand notice. Hence, the complaint for an offence
punishable under Section 138 of the N.I. Act.
(b) Mr. Satish Shroff (CW-1) was examined to
substantiate the indictment against the accused. After the
recording of evidence was concluded and the complaint was
posted for argument, the complainant filed an application to
recall Mr. Shroff (CW-1) for re-examination asserting that
during the course of the cross-examination the witness had
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volunteered that after deducting the amount of Rs.5,25,000/-
the balance amount due and payable was Rs.16,95,000/-.
However, the witness was not given opportunity to explain the
ambiguity that had arisen in the matter of calculation as the
accused intentionally wanted to suppress the refund of the
amount in the account of the father of the accused, on 7 th
March, 2014. A copy of the statement of the bank account of
the complainant certified by the banker was pressed into
service to support the claim that a sum of Rs.2,69,020/- was
credited to the account of the father of the accused.
(c) The application was resisted by the accused.
(d) By the impugned order the learned Magistrate
rejected the application holding inter alia that there was no
ambiguity in the evidence of said CW-1 and, therefore, re-
examination was not warranted.
4. Being aggrieved, the complainant has invoked the writ
jurisdiction.
5. I have heard Mr. Jaiswal, the learned Counsel for the
petitioner and Ms. Gonsalves, the learned Counsel for
respondent No.1, at some length. Perused the impugned
order and the material on record.
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6. Evidently, the complainant professed to re-examine Mr.
Shroff (CW-1) on the premise that there was an ambiguity in
the evidence of Mr. Shroff (CW-1). In the cross-examination
Mr. Shroff (CW-1) conceded that he had mentioned in the
complaint that total bill amount was Rs.16,95,000/- and
that was correct. In the demand notice the total bill amount
was shown Rs.19,90,000/-. Mr. Shroff (CW-1) volunteered to
state that after deducting deposit amount of Rs.5,35,000/-
balance amount of Rs.16,95,000/- was due.
7. An endeavour was made to urge that the complainant
had refunded an amount of Rs.2,69,020/- by crediting the
same to the account of the father of the accused. An extract
of account of the complainant maintained with HDFC Bank
containing an entry dated 7th March, 2014 evidencing the
credit of the amount of Rs.2,69,020/- to the account of
Bansilal, late father of the accused, was pressed into service.
8. The learned Metropolitan Magistrate was of the view
that the said explanation did not find the light of the day, till
the application for recalling of Mr. Shroff (CW-1) for re-
examination came to be filed. Therefore, it was an attempt to
fill in the lacuna in the case of the complainant. It was
further held that purpose of re-examination was confined to
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explain the ambiguities brought down in the cross-
examination and there was no such ambiguity in the case at
hand.
9. Ms. Gonsalves supported the impugned order. It was
urged that the application was preferred at the stage of
argument nay after substantive arguments were advanced. At
no point of time the complainant had offered the explanation,
which was sought to be offered by way of re-examination.
Therefore, the learned Magistrate committed no error in
dismissing the application.
10. The premise that re-examination ought to be restricted
to clarification of ambiguities brought out during the course
of cross-examination is not legally sustainable. The Supreme
Court in the case of Rammi alia Rameshwar vs. State of M.P.1
elucidated that there is an erroneous impression that re-
examination should be confined to clarification of ambiguities
which have been brought down in the cross-examination. No
doubt, ambiguities can be resolved through re-examination.
But that is not the only function of the re-examiner. If the
party who called the witness feels that explanation is
required for any matter referred to in cross-examination, he
1 (1999) 8 SCC 649.
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has the liberty to put any question in re-examination to get
the explanation.
11. The aforesaid judgment was followed by a learned
Single Judge of this Court in the case of Gurdial Singh vs.
M/s. Arudatta Triotex Engineers Pvt. Ltd., Badlapur and
another2. It was enunciated that re-examination is not
restricted to explaining any ambiguities in the oral evidence
(as is commonly misconstrued by many) but to explain any
matter which has been referred to in the cross-examination of
the witness. To protect the interest of the party cross-
examining the witness at the first instance against any new
material introduced in the re-examination, section 138 of the
Evidence Act further provides that if new facts are introduced
in the re-examination, the adverse party would have a right of
further cross-examination on that matter. The provisions of
Section 138 of the Evidence Act are so designed as to
do complete justice between the parties and to give them full
opportunity of adducing evidence. Re-examination has to be
liberally allowed where new facts are introduced in the cross-
examination.
2 2011(5) Mh.L.J. 889.
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12. The aforesaid being the position in law, the learned
Metropolitan Magistrate could not have rejected the
application for recall of Mr. Shroff (CW-1) for the purpose of
re-examination on the premise that there was no ambiguity
which required clarification.
13. Nonetheless, the stage of trial assumes significance.
Undoubtedly, Section 311 empowers the Court to recall and
re-examine any person already examined at any stage of trial
and the later part provides that the Court shall summon and
examine or recall and re-examine any such person if his
evidence appeared to be essential to just decision of the case.
The Court is vested with the discretion to recall and re-
examine the witness if such re-examination appears to the
Court to be essential to the just decision of the case. The
stage of proceedings, therefore, does not assume an inhibiting
character if resort to Section 311 is warranted for a just
decision of the case.
14. In the facts of the case at hand, the application for
recall came to be preferred at the stage of argument nay after
the commencement of the argument. Yet, the question as to
whether the complainant had transferred a sum of
Rs.2,69,020/- in the account of the patient bears upon the
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extent of the liability and, thus, on a just decision of the case.
However, for that purpose, re-examination of the
complainant's witness Mr. Shroff (CW-1) does not seem to be
warranted. The complainant can be permitted to tender an
extract of the complainant's account maintained with HDFC
Bank alongwith a certificate under the Bankers' Books
Evidence Act, 1891. Thereupon, the Court would be in a
position to consider the evidentiary value of the same while
determining the existence and enforceability of the liability in
discharge of which the subject cheque was allegedly drawn.
This course would ensure that the trial is not again relegated
to the stage of recording of evidence.
15. For the foregoing reasons, I am impelled to allow the
petition to the aforesaid extent.
16. Hence, the following order:
:ORDER:
(i) Petition stands partly allowed.
(ii) The impugned order rejecting the application Exhibit-
73A stands modified.
(iii) The complainant be permitted to tender an extract of
the account of the complainant maintained with the
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HDFC Bank for the relevant period duly certified under
Bankers' Books Evidence Act, 1891.
(iv) The complainant shall place such account extract
within a period of four weeks.
(v) The parties shall appear before the learned Magistrate
on 13th February, 2024.
(vi) Upon production of the extract of account, as
aforesaid, the learned Magistrate is requested to hear
the parties and decide the complaint in accordance
with law as expeditiously as possible.
(vii) Rule made absolute to the aforesaid extent.
Petition stands disposed.
[N. J. JAMADAR, J.]
