Order 2

Order Details: Order
Pdf Text: 1 C. C. No.4527/SS/2018
Exh.52
ORDER BELOW EXH.52
1. This is an application filed by complainant u/s.311 of
Cr.P.C. for calling bank witness.
2. Brief contentions in the application are as under:
Complainant has given his evidence. Accused cross-
examined complainant’s witness. Statement of accused under Section
313 of Cr. P.C. have also been recorded. Defence have led three defence
witnesses. They have been cross-examined by the complainant. After
that the matter was posted for final argument. At the time of getting
certified copy of present case, complainant came to know that bank
memo has not been exhibited by the Court which will cause irreparable
loss to the case of the complainant. Examining the bank witness to
prove the cheque return memo is just and necessary for the
complainant. Hence, this application to issue witness summons to bank
witness to prove cheque return memo.
3. Accused have filed their reply at (Exh.53). They have
submitted that application is bad in law and not maintainable. It is
further submitted that application is filed for the purpose of filling up
lacuna. It is further contended that complainant has not given the
reason for not examining the bank witness at the time of his evidence.
It is further contended that if application is allowed, it will cause
prejudice to the accused. Hence, they prayed to reject the application.
4. Heard advocate for both sides.
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2 C. C. No.4527/SS/2018
Exh.52
5. Perused record. Also perused order passed below (Exh.12)
by my learned predecessor on 03/12/2019. It was observed that bank
memo produced on record does not carry presumption under Section
146 of N.I. Act therefore, it was not exhibited. Cheque return memo
produced on record alongwith evidence affidavit by the complainant
shows seal of bank of complainant which issued it. It appears from the
contention of complainant that he wants to prove said cheque return
memo by examining bank witness. It is settled law that application
under Section 311 of Cr. P.C. can be filed at any stage. Only embargo is
that evidence of such witness should be essential to the just decision of
the case. Considering the ground for which complainant wants to
examine the bank witness, evidence of said witness appears to be
essential for just decision of present case. No prejudice will cause to the
accused if the application is allowed as he would get an opportunity to
cross-examine the witness. So application deserves to be allowed. In
the result, I pass following order :
ORDER
1. Application is allowed.
2. Issue witness summons to bank witness as prayed by the
complainant.
Date : 11/07/2024
Sd/-
( Shri. R.D. Dange )
Judicial Magistrate First Class,
63rd Court, Andheri, Mumbai
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