Bombay High Court
Madhukar Kacharuji Jumale vs Thakurdas Hasaram Santani And Another on 29 January, 2025
2025:BHC-NAG:1295
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 1428 OF 2024
APPLICANT : Madhukar Kacharuji Jumale,
Aged about 68 years, Occupation :
Business, r/o Near Gopal Talkies,
Washim, Tq. and District - Washim.
VERSUS
RESPONDENTS 1] Thakurdas Hasaram Santani,
Aged about 72 years, Occupation :
Business, R/o Pakki Kholi, Sindhi Camp,
Akola, Tq. and District Akola, Tq. and
District - Akola. P.S. Khadan, Akola.
2] State of Maharashtra,
through District Government Pleader,
Akola, Tahsil and District Akola.
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Mr. J.B. Gandhi, counsel for applicant.
Mr. D.M. Ailani, counsel for respondent No.1.
Mr. V.A. Thakre, APP for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 29/01/2025
ORAL JUDGMENT :
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1. Heard.
2. Admit.
3. Heard finally by consent of learned counsel appearing
for the parties.
4. By this application, the applicant is seeking quashing
and setting aside the order passed below Exhibit No. 146 by the
Judicial Magistrate First Class Court No. 2, Akola, by which the
application filed under Section 311 of the Criminal Procedure
Code is rejected.
5. It is contended by the applicant that a complaint has
been filed under Section 138 of the Negotiable Instruments Act,
1881, in the Court of Chief Judicial Magistrate Akola, which was
registered as S.C.C. No.1205/2013. It is alleged that the
complainant has paid the amount of Rs. 10 lakhs for business
purpose for the accused, and the amount of Rs. 7 lakhs was
decided to be repaid, and the M.O.U. was executed on
17/01/2007. There was a business partnership in between
complainant and the accused. However, ultimately the amount was
demanded back by the complainant, and therefore, the applicant
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has issued two cheques on 20/07/2012 drawn on Washim Urban
Cooperative Bank Ltd., Washim, of Rs. 5 lakhs dated 20/11/2012
and Rs. 5 lakhs dated 31/01/2013. The cheques were presented
and returned back with an endorsement "funds insufficient.".
Accordingly, the notice was issued on 27/02/2013, which was duly
served and received by the applicant on 01/03/2013. After receipt
of notice, the amount was not paid, and therefore, the complaint
was filed on 04/04/2013.
6. After filing of the complaint, the complainant has
examined himself on affidavit. On 26/03/2017, the applicant
engaged the counsel, and after recording the evidence and the
statement of the present applicant under Section 313 of the Code
of Criminal Procedure, 1973 (Cr.P.C.), the Judicial Magistrate First
Class was pleased to hold him guilty and sentenced him to suffer
rigorous imprisonment for a period of one month and to pay a fine
of Rs. 10 lakhs, in default to undergo simple imprisonment for
three months.
7. Being aggrieved and dissatisfied with the judgment
and order of sentence, the applicant has filed an appeal bearing
No. 25/2019. The contention of the applicant before the appellate
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court was that he was not given any opportunity of adducing the
witness or evidence, and also the prayer was made for remanding
the matter. Accordingly, the appellate Court, i.e., the District and
Additional Sessions Judge, considered the prayer and remanded
back the matter by setting aside the conviction of the present
applicant. It was directed that the applicant be permitted to
adduce his evidence in support of his defence by giving him the
opportunity to examine the defence witnesses.
8. After remanding back the matter to the trial Court,
the present applicant has filed an application under Section 311 of
the Cr.P.C. for recalling the complaint for further cross-
examination. On the ground that, after filing of evidence on
affidavit, the complainant was cross-examined by the accused. The
bulk of the document is filed by the complainant on record. The
cross-examination was not conducted, and many important facts
and documents were not presented, and many important questions
remained to be asked during the cross-examination, and therefore,
he was permitted to recall the witness. In view of that, the
application be allowed.
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9. The said application is strongly opposed by the
complainant on the ground that the matter was remanded back
only on the prayer that he be permitted to adduce the evidence in
support of his defence, and as far as recalling of the witness is
concerned, never raised before the appellate Court. It is further
contended by the complainant that this application is filed only to
prolong the matter.
10. Considering the submissions of both sides and the
settled law, the application is rejected by the Judicial Magistrate
First Class, Court No. 2, Akola, and therefore, this application is
filed.
11. Heard learned counsel for the applicant and learned
counsel for the respondents. Perused the impugned judgment
passed by the appellate Court. It was argued before the Appellate
Court that during the evidence, and after recording the statement
of the accused under Section 313 of the Cr.P.C., the learned trial
Court has closed the evidence of the accused, and subsequent to
that, there was a death of the counsel. Therefore, the appellant
could not produce his evidence in support of his defence and
therefore, he has not been given any sufficient opportunity to
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adduce the evidence.
12. In support of his defence, and considering the
submissions made by learned counsel for the applicant and
considering the order passed by the learned trial Court below
Exhibit No. 1 dated 01/10/2018, though sufficient opportunity
was given to the accused, he failed to argue the case. Hence, the
case is to proceed further without argument for the accused. The
matter was remanded back to the Judicial Magistrate First Class by
specific directions that he be permitted to adduce the evidence in
support of his defence by examining the defence witness. As far as
the submission before the Appellate Court is concerned, it was
never raised that for the interest of justice or for the just decision
of the case, the recalling of the witnesses is also necessary, and
therefore, he be permitted to recall the witness. Thus, first time
after remanding the matter, the issue was raised by the present
applicant by recalling the witness is required. As the complainant
is not cross-examined on the material issues, he be permitted to
cross-examine the witness by recalling the witness.
13. As far as the issue of recalling the witness is
concerned, now it is well settled that the object underlying Section
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311 of the Cr.P.C. is that there may not be a failure of justice on
account of mistakes of either party in bringing the valuable
evidence on record or living ambiguity in the statements of
witnesses examined from either side. The determinative factor is
whether it is essential to just decision of the case. The section is
not limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the court to summon a witness
under the section merely because the evidence supports the case of
the prosecution and not that of the accused. The section is a
general section which applies to all proceedings, enquiries and
trials under the Code and applies to all proceedings and empowers
the Magistrate to issue summons to any witness at any stage of
such proceedings, trial, or enquiry. In Section 311, the significant
expression that occurs is 'at any stage of any inquiry or trial or
other proceeding under this Code'. It is, however, to be borne in
mind that whereas the section confers a very wide power on the
court on summoning witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power, the greater the
necessity for application of judicial mind."
14. In the case of Vijaykumar Vs State of U.P. [(2011) 8
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SCC 136] The Hon'ble Apex Court while explaining scope and
ambit of Section 311 has held as under;
Though Section 311 confers vast discretion upon the
court and is expressed in the widest possible terms,
the discretionary power under the said Section can be
invoked only for the ends of justice. Discretionary
power should be exercised consistently with the
provisions of the Code and the principles of criminal
law. The discretionary power conferred under Section
311 has to be exercised judicially for reasons stated
by the Court and not arbitrarily or capriciously.
15. Learned counsel for the respondent no.1 placed
reliance in the case of Rajaram Prasad Yadav Vs State of Bihar and
another [Law Finder Doc Id # 461433] wherein the Hon'ble Apex
Court has laid down the principles, which have to be born in mind
by dealing with an application under Section 311 Criminal
Procedure Code read along with Section 138 of the Evidence Act.
The said principles are as follows ;-
"(i) Whether the Court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
(ii) The exercise of the widest discretionary power
under Section 311 Criminal Procedure Code should
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ensure that the judgment should not be rendered on
inchoate, inconclusive and speculative presentation of
facts, as thereby the ends of justice would be defeated.
(iii) If evidence of any witness appears to the Court
to be essential to the just decision of the case, it is the
power of the Court to summon and examine or recall and
re-examine any such person.
(iv) The exercise of power under Section 311
Criminal Procedure Code should be resorted to only with
the object of finding out the truth or obtaining proper
proof for such facts, which will lead to a just and correct
decision of the case.
(v) The exercise of the said power cannot be
dubbed as filling in a lacuna in a prosecution case, unless
the facts and circumstances of the case make it apparent
that the exercise of power by the Court would result in
causing serious prejudice to the accused, resulting in
miscarriage of justice.
(vi) The wide discretionary power should be
exercised judiciously and not arbitrarily.
(vii) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a just
decision of the case.
(viii) The object of Section 311 Criminal Procedure
Code simultaneously imposes a duty on the Court to
determine the truth and to render a just decision.
(ix) The Court arrives at the conclusion that
additional evidence is necessary, not because it would be
impossible to pronounce the judgment without it, but
because there would be a failure of justice without such
evidence being considered.
(x) Exigency of the situation, fair play and good
sense should be the safe guard, while exercising the
discretion. The Court should bear in mind that no party
in a trial can be foreclosed from correcting errors and
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that if proper evidence was not adduced or a relevant
material was not brought on record due to any
inadvertence, the Court should be magnanimous in
permitting such mistakes to be rectified.
(xi) The Court should be conscious of the position
that after all the trial is basically for the prisoners and the
Court should afford an opportunity to them in the fairest
manner possible. In that parity of reasoning, it would be
safe to err in favour of the accused getting an opportunity
rather than protecting the prosecution against possible
prejudice at the cost of the accused. The Court should
bear in mind that improper or capricious exercise of such
a discretionary power, may lead to undesirable results.
(xii) The additional evidence must not be received as
a disguise or to change the nature of the case against any
of the party.
(xiii) The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
(xiv) The power under Section 311 Criminal
Procedure Code must therefore, be invoked by the Court
only in order to meet the ends of justice for strong and
valid reasons and the same must be exercised with care,
caution and circumspection. The Court should bear in
mind that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of fair
and proper opportunities to the persons concerned, must
be ensured being a constitutional goal, as well as a
human right."'
16. By referring the judgment of Raj Deo Sharam (II) Vs
State of Bihar [1999 (4) RCR (Criminal) 206], the proposition has
been laid down is that "We may observe that the power of the
court as envisaged in Section 311 of the Code of Criminal
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Procedure has not been curtailed by this Court. Neither in the
decision of the five-Judge Bench in A.R. Antulay case nor in Kartar
Singh case such power has been restricted for achieving speedy
trial. In other words, even if the prosecution evidence is closed in
compliance with the directions contained in the main judgment it
is still open to the prosecution to invoke the powers of the court
under Section 311 of the Code. We make it clear that if evidence of
any witness appears to the court to be essential to the just decision
of the case it is the duty of the court to summon and examine or
recall and re-examine any such person.
17. Thus, the powers conferred under Section 311 of the
Criminal Procedure Code must therefore be invoked by the court
only in order to meet the ends of justice, strong and valid reasons,
and the same must be exercised with great caution and
circumstances.
18. In light of the above principles and considering the
scope and object of the provision, which is to enable the court to
determine the court and to render a just decision after discovering
relevant facts and obtaining the proper course of such facts, to
arrive at a just decision in the case.
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19. As far as the present matter is concerned, the record
shows that initially also, after giving sufficient opportunities, the
applicant has not taken a call and not examined the witness in
support of the statement, but considering that remand of the
matter is required as the opportunities are to be given to the
present applicant to adduce the evidence, the matter was
remanded back, with a specific condition that he shall adduce the
evidence in support of his evidence. Before the appellate court, he
never raised any issue that he has not got an opportunity to cross-
examine the witness on material points, as the counsel was
suffering from the illness and was not able to cross-examine the
complainant on material aspects, and now the said application is
filed.
20. The transaction is of year 2007. The complaint was
filed in the year 2013. The criminal case was decided on
16/11/2018, and the appeal was decided on 24/11/2023, and
now the application under Section 311 of the Criminal Procedure
Code is filed on 11/02/2023.
21. Considering the entire scenario, in which the
complaint and the entire proceeding is proceeded, it reveals that
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the present application is also filed only to prolong the matter.
Admittedly, the issue of recalling the witness was never raised
before the appellate Court. It was also never raised that the
complainant is not cross-examined on material aspects, and
therefore, that opportunity should be given to the applicant to
cross-examine the complainant. If that could have been raised,
definitely the appellate Court would have given an opportunity to
the present appellant while disposing of the appeal. It is well
settled that for filling up the lacuna, the provision under Section
311 of the Criminal Procedure Code cannot be evoked.
22. In view of the above facts and circumstances of the
case, the criminal application deserves to be rejected. Accordingly,
I proceed to pass the following order.
The criminal application is rejected.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 10/02/2025 19:51:28
