Order 2

Order Details: Order Below EX 1
Pdf Text: MHMM180091572019
Summons Cases SS/5801263/2019
Mohammad Yusuf Mustafa Lakdawala Vs. Nazir
Ismail Mansoori
IN THE COURT OF METROPOLITAN MAGISTRATE, 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.18
1. This is an application moved on behalf of the complainant
for permitting the complainant for re-examination.
2. It is submitted on behalf of the advocate of the
complainant that he desires to re-examine the complaint as there are
certain ambiguity in the cross examination conducted by the advocate
of accused which would have adverse effect on the case of complainant
if not clarified. There are certain facts brought on record in the cross
examination which requires the clarification and explanation from the
complainant. Hence, this application.
3. Application is strongly objected on behalf of the accused
vide detailed reply at Exh.19.
4. It is submitted on behalf of the accused that application is
not maintainable. The application is moved with intention to fill up
lacuna in the evidence of complainant. The accused has opened the
defence during the cross examination. There is no ambiguity in the
testimony of complainant which requires any further explanation etc.
Accordingly, prayed for rejecting the application.
5. Heard advocate Hassan Khan for the complainant and
advocate Vishwanath Nair for the accused.
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Order below Exh.18
6. On hearing advocate for complainant it apprises that
according to the advocate for complainant admissions given in the cross
examination by the complainant are ambiguous in nature which
requires further clarifications. I have perused the statements made by
the complainant in his cross examination. On perusal of the cross
examination, it is crystal clear that the statement made by the witness
in cross examination are not at all ambiguous. Rather to say, the same
are admissions given in cross examination fairly and truthfully.
7. No doubt PW-01 is Power of Attorney Holder of the
original complainant, but whatever facts deposed by him are related to
the truth as to his knowledge about the transaction in question. The
said statement may be hampering the case of complainant, but the
same can not be termed as ambiguous statements which requires
further explanation or clarification envisaged under section 138 of The
Indian Evidence Act. Permitting the complainant for re-examination
would amount to filling up lacuna at the hands of the court and
bringing negative evidence on record.
8. Advocate for complainant has relied upon Judgment in the
case of
Rammi Rama Vs. State of M.P. reported in 1999(8) SCC 649. I
have gone through the judgment and ratio laid down by Hon’ble Apex
Court. The same would not be applicable to the case in hand as it is
founded on totally different facts. Hon’ble Apex Court has held that,
“There is an erroneous impression that re-examination should be
confined to only clarification of ambiguity which has been brought
down in cross examination. It is not the only function of the re-
examiner to resolve the ambiguity in re-examination. Further Hon’ble
Apex Court has held that re-examiner has liberty to put any question in
re-examination to get the explanation. The re-examination and its
question shall not be within the control of the trial of the court. The
court can not direct the party who is seeking re-examination to confine
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Order below Exh.18
his questions to ambiguity alone”. In short the sum and substance of
the ratio laid down by Hon’ble Apex Court is that the party who is
permitted for re-examination is not bound to restrict himself for putting
number of questions and that too in respect of ambiguity only. The re-
examiner was given the freedom and liberty to bring on record the
necessary circumstances and facts considering the liberal view to be
taken by the trial courts.
9. In the case in hand firstly there is no ambiguity in the
statements made by the witness in cross examination. On the contrary,
it clearly speaks that witness has no knowledge pertaining to the
transactions done by the original complainant. Therefore, the ratio
would not be useful to accept the submission made on behalf of the
complainant for the claim of re-examination.
10. Admittedly still the evidence of complainant is going on. It
is not that the evidence of complainant is closed. The complainant has
ample opportunity to establish his case by adopting appropriate legal
ways contemplated to lead evidence either by oral evidence or
documentary evidence or primary or secondary as per the provisions of
Indian Evidence Act. It is not that all the doors are closed and there is
no efficacious remedy for the complainant in his case. Hence, there
would not be causing any prejudice to the complainant at all.
Therefore, I pass following order.
O R D E R
1) The application is rejected.
2) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate (First Class)
Date : 04.09.2024 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 : 04.09.2024.
Transcribed and Typed on : 04.09.2024.
Order printed and Signed on : 04.09.2024.
Order Uploaded on : 04.09.2024.
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