In a cheque dishonour case, the High Court rejected the petitioner's writ petition challenging the dismissal of an application to recall the complainant under Cr.P.C. 311 to produce missing original documents after the trial concluded.
Writ petition rejected and disposed of; order under Cr.P.C. 311 remains rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.469 OF 2022
Harji Somji PatelPetitioner
versus
Sameer Amirhamja Bagwan and anotherRespondents
Mr.Umesh Mankapure with Rui Darawala, Advocate for petitioner.
Mr.Ngesh Y.Chavan, Advocate for respondent no.1.
Mr.A.D.Kamkhedkar, APP, for State.
CORAM:PRAKASH D. NAIK, J.
DATE:13th June 2022
PC :
1.The petitioner is original complainant in S.S.C.No.1251 of
2016. The complaint was filed for offence under Section 138 of
Negotiable Instruments Act.
2.The petitioner is aggrieved by the order dated 3rd September
2021 passed by learned Judicial Magistrate, First Class, Miraj
rejecting application under Section 311 of Code of Criminal
Procedure.
MANISH Digitally signed byMANISH SURESH SURESH THATTE THATTE Date: 2022.07.2010:10:02 +0530
3.Learned advocate for petitioner submits that petitioner filed
affidavit of evidence with all original documents except notice dated
18th May 2016. He was under impression that original office copy
was filed along with Exhibit-3. However, it was xerox copy of the
demand notice. Since it was xerox copy, it was not exhibited during
examination-in-chief. The advocate for respondent-accused during
the cross-examination of the complainant did not raise specific
question about sending of notice nor objected as the notice being
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photocopy of notice. The accused in his statement u/s.313 of Cr.P.C
did not state that notice was never sent to him nor denied the
contents of notice or signature on receipt of RPAD letter. The
accused did not examine himself or rebutted the presumption under
Section 139 of Negotiable Instruments Act. The case of posted for
arguments. Thereafter the advocate for complainant came to know
that notice dated 18th May 2016 was not exhibited and produced
photocopy of notice instead of original office copy. The petitioner
had moved an application under Section 311 of Cr.P.C. and to cure
the defect. The said application was rejected by order dated 3rd
September 2021. The petitioner filed revision application before
Sessions Court, which was rejected by order dated 1st December
2021. It is further submitted that Courts did not consider scope of
Section 311 of Cr.P.C. It was an inadvertent mistake not to produce
original copy of notice. The photocopy was resembling like original
document. After realizing that original was not produced or
exhibited in evidence, the application was made u/s.311 of Cr.P.C.
Such application could be made at any time before conclusion of
trial. Reliance is placed on the decision of this Court in case of
Jagdale Mirch Masala Products (India) Vs. Kamal Foods and
another1.
4.Learned advocate for the respondent-complainant submitted
that affidavit-in-evidence of complainant was recorded. He was
cross-examined. The statement of accused was recorded u/s.313 of
Cr.P.C. At this stage the complainant preferred application u/s.311 of
Cr.P.C. Sufficient opportunity was available to the complainant to
rectify the mistake, if any. At this stage the complainant is trying fill
up the lacuna by recalling the witness/complainant by exercising
1 (2010)4-Mah.L.J.-619
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powers u/s.311 of Cr.P.C. That cannot be permitted. The case was
due for judgment after arguments were heard. He relied upon
decisions in case of Vijay Haribhau Kindarle Vs. Ramdas Mahadeorao
Gaidhane2 and Nayna Rajan Guhagarkar Vs. The State of
Maharashtra3.
5.The petitioner has initiated the proceedings u/s.138 of
Negotiable Instruments Act. The affidavit-in-evidence of the
complainant was submitted on 21st July 2017. Oral examination-in-
chief of the complainant was recorded on 24th January 2020. The
complainant did not cure the defect which is the subject matter of
this petition. The complainant was cross-examined at the instance of
accused. The cross-examination was completed on 28th February
2020. The statement of accused was recorded u/s.313 of Cr.P.C on
29th January 2021. Arguments of both the sides were heard.
Thereafter the complainant preferred application u/s.311 of Cr.P.C
vide Exhibit-50 on 3rd April 2021. The accused filed his say and
opposed the application contending that application is not
maintainable. Sufficient opportunity was given to the complainant.
After the affidavit of evidence/examination-in-chief was submitted,
opportunity was given to the complainant before recording his cross-
examination and his evidence was recorded on 20th January 2020 he
was cross-examined. In his cross-examination the defence has
brought admissions on record and case was due for judgment. The
application has been preferred to fill up the lacuna in the evidence of
complainant. Learned Magistrate by order dated 3rd September 2021
rejected the application. It was observed that it was incumbent upon
the complainant to prove notice in evidence. Despite having liberty,
2 2012-ALL.M.R.(Cri.)-1207
3 Criminal Writ Petition No.1658 of 2021, decvided on 13-7-2021
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the complainant failed to produce and exhibit the office copy of
demand notice. The witness cannot be recalled after having
opportunity and failing to prove the notice. The petitioner then
preferred revision application before Sessions Court which has been
rejected by order dated 1st December 2021. Learned Sessions Judge
has taken into consideration submissions of both the sides,
judgments relied upon by the parties and observed that recalling of
witness cannot be routinely permitted. Despite having opportunity,
party failed to produce evidence on record and was not diligent
about it. The case was finally argued and it was posted for
judgment. At that stage the application u/s.311 of Cr.P.C was filed.
The Court also observed that impugned order is interlocutory and
the revision application was not maintainable.
6.In the case of Jagdale Mirch Masala Products (India) Vs. Kamal
Foods and another (supra), this Court had observed that powers
u/s.311 wee not only for the benefit of accused but for the benefit of
prosecution also. Administration of justice could not be permitted to
be frustrated on hyper technicalities. The application for permission
to file additional affidavit in lieu of examination-in-chief was
allowed. The factual aspect of the said decision appears to be that
application for permission to file additional affidavit in lieu of
examination-in-chief was filed. Copies of documents were already
filed along with complaint and application for permission to produce
original of the said document was already allowed. Merely because
the documents could not be produced in the affidavit in lieu of
examination-in-chief could not be the ground for rejecting
application.
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7.In the case of Vijay Haribhau Kindarle Vs. Ramdas
Mahadeorao Gaidhane (supra) it was observed that complainant
failed to prove dishonour notice in his examination-in-chief.
Therefore, application for additional examination-in-chief was filed
to prove a fact. Such application cannot be allowed. Section 311 of
CrP.C cannot be brought in aid to cure the failure of a party to prove
a fact which refers to party witness, knowledge and memory. In the
case of Nayna Rajan Guhagarkar Vs. The State of Maharashtra
(supra), this Court had observed that Section 311 of CrP.C can be
invoked at any stage of enquiry or trial to examine any person if it is
sufficient to the just decision of the case. However, the said power
cannot be used to fill up lacuna in the prosecution evidence.
8.Considering the facts of the present case and the impugned
orders passed by Courts below assigning reasons declining the relief
to the petitioner, I do not see any reason to deviate from the view
expressed by the Courts below. It is rightly observed that the
application made at the belated stage cannot be entertained. It is
apparent that complainant was trying to fill up the lacuna. The issue
goes to the root of the matter. After the matter has reached at such a
stage, the application preferred by the complainant in the facts of
this case cannot be allowed. Hence, I pass following order :
ORDER
(i)Writ Petition stands rejected and disposed of.
(PRAKASH D. NAIK, J.)
MST
3 issues framed by the court
Whether Section 311 Cr.P.C. can be invoked at a belated stage to cure a lacuna in prosecution evidence by recalling the complainant.
Whether an affidavit filed later in lieu of examination-in-chief is maintainable after the trial has been concluded.
Whether the rejection of the writ petition in revision of the lower court's order was correct.
Colour shows how this judgement treated each authority
Jagdale Mirch Masala Products (India) Vs. Kamal Foods and anotherReferred¶7
(2010)4-Mah.L.J.-619
Vijay Haribhau Kindarle Vs. Ramdas Mahadeorao GaidhaneDistinguished¶7
2 2012-ALL.M.R.(Cri.)-1207
Nayna Rajan Guhagarkar Vs. The State of MaharashtraDistinguished¶7
Criminal Writ Petition No.1658 of 2021, decvided on 13-7-2021
3 provisions across 2 enactments
Harji Somji Patel
Sameer Amirhamja Bagwan
Prakash D. Naik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court