Order 2

Order Details: Order
Pdf Text: 1 C. C. No.1951/SS/2018
Exh.44
ORDER BELOW EXH.44
1. This is an application filed by complainant under Section 311
of Cr. P.C to prove bank return memo and delivery of goods.
2. Brief contentions in the application are as under:
Complainant has filed present complaint under Section 138
of N.I. Act. It is contended that original complainant had produced
documents related to the transaction mentioned in the complaint and the
matter is posted at the stage of argument. It is next contended that bank
return memo is not exhibited as there was no seal of concerned bank. It is
further contended that complainant wants to show delivery of goods to the
accused and for that she wants to bring one more witness to prove the
delivery of goods. She placed her reliance on the decision in the cases of
Varsh Garg V/s. State of Madhya Pradesh and ors [2023 ALL MR (Cri) 720
(S.C.)] and in Vijay Chandra Mohan Khot and Anrs V/s. State of
Maharashtra and another [2023 ALL MR (Cri) 1437]. I have gone through
both the citations. She further contended that she is having good case on
merit and in the interest of justice, seeking permission to call bank witness
of her bank. Hence, this application.
3. Accused has filed his reply at (Exh.46) and objected the
application. He has submitted that present application filed by
complainant is not maintainable in the eyes of law. He next submitted that
criteria to file application under Section 311 of Cr. P.C. is not fulfilled by
the complainant. He further submitted that complainant had already
closed her evidence and statement of accused under Section 313 of Cr. P.C.
is recorded. He further submitted that he has cross-examined the
complainant at length and the matter is posted for final argument. Now,
complainant wants to examined two more witnesses. He lastly submitted
that reasons mentioned in the application are not sufficient and enough to
call the witness for cross-examination who are already cross-examined at
length. Hence, he prayed to reject the application.
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2 C. C. No.1951/SS/2018
Exh.44
4. Heard advocate for both sides.
5. Perused record. It appears that cross-examination of C.W.1 is
conducted by the accused and it is over on 13/06/2023. Complainant has
filed her evidence closed pursis on 13/06/2023 and statement of accused
under Section 313 of Cr. P.C. was recorded on 04/10/2023. Thereafter,
complainant filed present application on 02/01/2024. Upon perusal of
record it seems that complainant has not filed on record delivery challans
upon which she wants to prove the delivery of goods to the accused. It
appears that she is trying to fill up the lacuna in the case. Considering this
fact and ground mentioned by complainant in the application, interest of
justice requires that complainant may be given fair opportunity to put up
her case. So application deserves to be allowed only with respect to call
bank witness to prove bank return memo filed by the complainant on
record. At the same time it cannot be ignored that there has been delay in
the disposal of case due to her, so some cost is necessary to be saddled on
her. In the result, I pass following order :
ORDER
1. Application is partly allowed with respect to bank witness
subject to payment of costs of Rs.1,000/- (Rupees One
Thousand Only) to the bank witness.
2. Issue witness summons to bank witness on payment of cost
amount.
Date : 30/03/2024
Sd/-
( Shri. R.D. Dange )
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai
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