Order 3

Order Details: Order Below EX 1
Pdf Text: MHMM180061482021
Summons Cases SS/5800780/2021
Anuj Shrikant Tiberewala Vs. M/s Aahi Chemicals
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.222 DATED 13.02.2025
This is an application filed on behalf of the complainant to recall
witness of the complainant and permit to lead additional evidence.
2. It is contended on behalf of the complainant that the cheques
Exh.164 and 173 were issued by the accused in presence of his father.
Therefore, he be permitted to examine his father. Secondly, he requested
to recall complainant himself to prove issuance of cheques which would
prove hand writing of the accused on those cheques. Ground for recalling
complainant is taken under legal head of fair play of trial observed by
Hon’ble Apex Court in its Judgment.
3. The accused Nos.1 to 4 objected the application vide their detailed
reply at Exh.223 dated 19.02.2025 which was filed on 28.02.2025. The
application was strongly objected mainly on the ground that the same is
filed after advancing final arguments by both parties. Secondly, on the
ground of filling lacunae in complainant’s evidence. It is further contended
that application nowhere mentions that it was not possible for the
complainant to have knowledge of the alleged facts mentioned in the
application before 13.02.2025. No case is made out to exercise the
powers of jurisdiction for recalling of the witness or examine an additional
witness at all. Application is also objected for the reason of disclosing
defence and resultant prejudice to the rights of the accused. By the
captioned application, the complainant wants a fresh and denova trial in
the matter. Accordingly, prayed for rejecting the application.
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4. Heard, advocate Mr. I.Z. Merchant for the complainant and Mr.
R.P.Joshi for the accused persons at length. Perused citations relied upon
by the both parties.
5. Needless to state that application is moved at a fag end of trial after
advancing final arguments by both parties. Before touching to legal aspect
and merits of the application to be considered under section 311 of Code
of Criminal Procedure, the question crops up for determining bonafide
and genuineness of the application.
6. While deciding whether application or the prayers made in the
application are bonafide and/or genuine, again question crops up what
precluded the complainant to lead evidence in respect of those facts
mentioned in the application which have became a crucial point for
determination as to the rights of the parties finally by Judgment? There is
no satisfactory answer to this question on the side of complainant and his
advocate. Record shows that accused have put their case in defence by
thorough cross examination challenging issuance of cheques voluntarily by
the accused. Therefore, there is reason to believe that knowing well about
said facts and relevant evidence, complainant has not adduced the same
despite the objection of the accused and defence taken by way of cross
examination. There is no justification from the complainant, why he has
not adduced said evidence at earlier stage of trial, in respect of those facts
which goes to the root of the case.
7. The reason given in application that complainant subsequently
came to know running business of accused No.1 jointly by accused No.2 to
4, accused No.3 is owner of the Tanker by which the material was carried
etc. appears baseless looking into several transactions in between the
parties. Accused has categorically denied receiving of material and
resultant legal liability or obligation. In the facts and circumstances,
complainant was bound to give proof to that effect when he had
knowledge of the facts either prior to trial or even after his cross
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examination. It can not be said a simply a fallout of an oversight
committed by advocate or mistake on the part of advocate.
8. Complainant want to examine his father for the sake of proving
issuance of disputed cheques by the accused to him. This is also not
clarified fact on the part of complainant. When the accused has taken
specific defence of obtaining cheques under threat by entering into his
factory by the persons of complainant, the burden was lying upon the
complainant to prove that those cheques were voluntarily issued by the
accused. To discharge said burden, he would have examined his father
during the course of trial at proper stage of leading evidence. In this
context also no justification given why the witness Mr. Shrikant Tibrewala
was not examined during the trial.
9. It is pertinent to note that, there is no discovery of new evidence on
the side of complainant to presume his inability to lead such evidence.
Whatever evidence was available with the complainant. The civil
proceeding of summary suit is earlier proceeding than present complaint.
The matter is transferred from Court of Additional Chief Judicial
Magistrate, Nagpur Court to this court on the point of jurisdiction. The
accused are residing at Nagpur and Raipur. The application smells making
harassment of the accused by keeping the matter lingering. Therefore,
there appears no bonafides or genuineness in the application.
10. Now coming to legal aspect of powers of this court to recall any
witness at any stage conferred under section 311 of Code of Criminal
Procedure. The powers conferred under section 311 of Code of Criminal
Procedure, empowers the court to examine any witness at any stage, but
exercise of such powers needs to be only when such evidence is essential
for the just decision of the case. Just decision of the case does not mean
giving blanket permission by law to fill up the lacuna brought on record
during the crouse of trial. So also, the provision expect using such
discretion by the courts very cautiously only when it deems fit that there is
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any ambiguity in the evidence on record which would result in injustice
while searching truth with any party and/or substantial reason exists for
not producing such evidence at a proper stage of the trial. In the case in
hand, granting permission without use of judicious discretion only for the
sake of provision, would amount to take the trial back to evidence stage.
Law under section 143(3) of the Act mandate to conclude the trial within
6 months. This would be an encroachment upon the statutory provision
under a special law. Section 142 of the Act, deals with cognizance of
offences which starts with wording, “Notwithstanding anything contained
in the Code of Criminal Procedure, 1973.” Therefore, when the law
mandates to try the case summarily under section 143 of the Act, the
provision under section 311 of Code of Criminal Procedure would not
apply ipso facto without application of judicious discretion.
11. The presumption of innocence is the basic presumption founded by
the Constitution of India to be benefited by the accused till up to the final
conclusion of the trial. Therefore, whenever the defence is disclosed by
the accused, the provision under section 311 of Code of Criminal
Procedure would not be helpful for the complainant to fill up lacuna in
evidence when the trial is almost came to an end unless it is essential for
the just decision of the case and that too when there are no reasonable
grounds for not adducing such evidence at the proper stage of trial.
12. Advocate for complainant has relied upon Judgment of Hon’ble
Supreme Court in the case
P. Chaganlal Daga Vs. M. Sanjay Shaw in
which case Hon’ble Apex Court has relied upon Judgment in the case of
Rajendra Prasad Vs. Narcotic Cell and
Mohanlal Shamji Soni Vs. Union of
India. The sum and substance of the observations of Hon’ble Apex Court
states that, “A lacuna in the prosecution case is not to be equated with the
fallout of an oversight committed by a Public Prosecutor during the trial,
either in producing relevant materials or in eliciting relevant answers from
the witnesses. The adage ‘to err is human’ is the recognition of the
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possibility of making mistakes to which humans are prone. A corollary of
any such latches or mistakes during the conducting of case can not be
understood as a lacuna which a court can not fill up. The exercise of
jurisdiction of the courts under section 311 is dictated by the exigency of
the situation and fair play.”
13. I have carefully gone through the observations and ratio laid down
by the Apex Court in all above Judgments. With due respect to the
observations and ratio laid down in the Judgments cited supra, in my
opinion the facts of the case in hand are absolutely different. Herein
latches and mistakes in conducting case can not be said to be adage to err
is human. Secondly, no exigency of situation warrants in the case in hand
nor exercise of jurisdiction of the court under section 311 would amount a
fair play of trial. On the contrary, it will amount to take away the right of
the accused to have a speedy trial. The deliberate conduct on the part of
complainant not to adduce best evidence compels me to restrain myself
using the powers conferred upon this court in the interest of justice.
Application under section 311 of Code of Criminal Procedure, now a days
has become a protracting legal tool in the hands of advocates under guise
of principles of natural justice and an opportunity of fair trial. Hence, I
pass following order.
ORDER
1) Application is rejected.
2) Matter be posted for Judgment on 01.08.2025 to facilitate
the complainant to approach before appropriate Appellate
Authority and seek necessary relief till next date.
3) Order be uploaded on CIS for the knowledge of the parties.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate (First Class),
Date : 23.06.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court, Bandra,
Mumbai.
Dictated in open court on : 23.06.2025.
Transcribed and Typed on : 23.06.2025.
Order printed and Signed on : 23.06.2025.
Order Uploaded on : 24.06.2025.
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