Allowed

Jubin Shah v. the State of Maharashtra and Anr.

Bombay HC1 Dec 2023WP/1084/2023

Case brief

AI extract

What is this about?

In this criminal writ petition, the petitioner challenged an order permitting the complainant to examine a bank officer despite a long delay. The High Court upheld the trial court's discretion under Section 311 Cr.P.C. allowing the examination essential to prove Section 138 NI Act ingredients but enhanced costs payable to the petitioner.

What did the court decide?

Permitted examination of one bank officer within 8 weeks; cost of Rs.30,000 payable to petitioner by respondent.

Jubin Shah Vs the State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1084 OF 2023

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Jubin Shah.... Petitioner

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 versus

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The State of Maharashtra & Anr..... Respondents

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Mr. Prasanna Bhangale, Advocate for Petitioner.

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Mr. Arfan Sait, APP for the State/Respondent No.1.

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Mr. Jehangir Khajotia, Advocate for Respondent No.2.

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CORAM: SARANG V. KOTWAL, J.
DATE: 01st DECEMBER, 2023

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P.C. :

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1. The Petitioner is the original accused in C.C. No.2496/

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Digitally signed by MANUSHREE MANUSHREE NESARIKAR NESARIKAR Date: 2023.12.04 16:52:33 +0530

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SS/2013 before the learned Additional Chief Metropolitan
Magistrate, 7th Court, Dadar, Mumbai. The complaint is filed by
the Respondent No.2 herein for dishonour of the cheque dated
29/01/2013 for Rs.10 lakhs drawn on Thane Bharat Sahakari
Bank Ltd., Ghatkopar (West) Branch. According to the
complainant, the cheque was dishonoured with a memo dated
29/04/2023 with the remark as ‘Funds insufficient’. Based on

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Nesarikar

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these allegations, after following the due procedure, the
complaint was lodged on 06/07/2013. The trial is still not over.
At present, the stage of the trial is that, the written arguments of
the both the parties are already tendered and it is kept for final
arguments to be advanced by both the parties. At this belated
stage, the Respondent No.2 preferred an application at Ex.82 for
permission to examine the bank witness for proving the fact
regarding the dishonour of the subject cheque. The learned
Magistrate vide his impugned order dated 27/02/2023 allowed
the application and therefore the Petitioner has challenged that
order in the present Petition.

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2. Heard Mr. Prasanna Bhangale, learned counsel for the
Petitioner, Mr. Jehangir Khajotia, learned counsel for the
Respondent No.2 and Mr. Arfan Sait, learned APP for the State.

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3. Learned counsel for the Petitioner submitted that the

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Respondent No.2, though is the complainant himself, he is
prolonging the trial and is preferring various applications for

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recalling himself and filing application for calling a bank officer
at different stages. This conduct of the Respondent No.2 has
caused serious prejudice to the Petitioner. He submitted that the
Petitioner has raised a specific objection in his written argument
that the memo of dishonour of the cheque did not bear the seal
of the bank and hence it is not a valid memo u/s 146 of the N.I.
Act. After this particular issue was raised in his written
argument, to fill up the lacuna, the Respondent No.2 has
preferred this application, which was allowed. He submitted that
the approach of the learned Magistrate was not correct and
looking at the past conduct and also looking at the attempt to
fill up the lacuna, this application should not have been allowed.

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4. Learned counsel invited my attention to the order
passed by this Court (Coram : Prakash D. Naik, J.), dated
24/08/2022 in Writ Petition No.6257 of 2021 whereby the
Respondent No.2’s attempt for permission to file additional
documents was rejected. He submitted that this Court has made
observations regarding the conduct of the Respondent No.2. He

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further submitted that the same observations may be applied at
this stage also and therefore the impugned order is required to
be set aside.

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5. Learned counsel for Respondent No.2 submitted that
the examination of the bank officer would be in the interest of
justice. The learned Magistrate has exercised his jurisdiction in
the interest of justice and therefore the order need not be
interfered with. He submitted that the Respondent No.2 has no
intention to prolong the matter as ultimately he would be
benefited if the matter is decided at the earliest. He submitted
that the order be passed for making the trial time bound. He
makes a positive statement that the Respondent No.2 shall not
recall any witness and he shall not examine any other witness
except one bank officer to prove the cheque dishonour memo
and to show insufficiency of funds on that particular date of
dishonour of the cheque by producing record only for that
purpose. He also states that he will not recall himself or will not
examine any other witness for any other purpose. He will not

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introduce any other new evidence for any other purpose. The
statement is recorded and accepted.

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6. I have considered these submissions. It is true that this
Court in Criminal Writ Petition No.6257 of 2021 vide order
dated 24/08/2022 has observed that the complaint is pending
since 2013. The record indicates that the complainant has been
prolonging the proceeding. Initially the application was
preferred for filing additional documents. Thereafter the
application was preferred for recalling of the complainant on
09/10/2017. That application was allowed. Two years thereafter

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another application was preferred for recalling of the
complainant on 16/12/2019 as he wanted to prove some
documents. That application was not pressed. After that, one
more application was preferred on 06/02/2021 for permission
to file additional evidence to prove his case beyond reasonable
doubt. The learned Magistrate permitted the complainant to
examine himself to prove those documents. That order was
challenged in the Criminal Writ Petition No.6257 of 2021. The

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Writ Petition was allowed and the order was set aside. It was
observed that the powers u/s 311 of Cr.P.C. cannot be used to fill
up lacuna in the prosecution evidence and that no case was
made out to exercise powers u/s 311 of Cr.P.C.

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7. Those observations show the conduct of the

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complainant during the entire prosecution. However, the said
order was restricted for rejecting the application to file
additional evidence which was not relevant to the cheque
dishonour memo. Therefore, the said order passed in Writ
Petition No.6257 of 2021 was not concerning the subject matter
of the present Petition for examination of bank officer to prove
the cheque dishonour memo. The case of the Petitioner is that
the cheque dishonour memo does not bear the seal of the bank.
Therefore, it is not a valid document as per section 146 of the
N.I. Act. This is a totally different consideration and it goes to

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the root of the matter of the dishonour of the cheque. The
learned Magistrate in his impugned order allowing the
examination of bank officer has observed that the evidence of

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the proposed witness is essential for a just decision of the case.
He further observed that the fact of the dishonour of the subject
cheque was never disputed by the accused. No prejudice would
be caused to the accused if the application was allowed. The
learned Magistrate also took note of the fact that the matter was
pending since 2013 and that the complainant was expected to
examine the bank witness at the earliest. The learned Magistrate
has observed that the complainant had not acted diligently and
has caused delay in making the application. Therefore, the
learned Magistrate imposed cost of Rs.2,000/- payable to the
District Legal Services Authority, Mumbai.

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8. In this background, the scope of section 311 of Cr.P.C.
needs to be seen. Section 311 of the Cr.P.C. reads thus :

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“311. Power to summon material witness, or examine person present .

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Any Court may, at any stage of any inquiry, trial
or other proceeding under this Code, summon any
person as a witness, or examine any person in
attendance, though not summoned as a witness, or.

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recall and re- examine any person already examined;
and the Court shall summon and examine or recall and
re- examine any such person if his evidence appears to
it to be essential to the just decision of the case.”

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9. The main consideration for exercising power u/s 311 of
Cr.P.C. is that a person can be examined if the Court considers
that his evidence is essential to the just decision of the case.

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10. Learned Magistrate has exercised his discretion and has
observed that the evidence of bank officer is necessary for the
just decision of the case. I cannot find fault with his reasoning
because in the case u/s 138 of the Negotiable Instruments Act
(for short ‘N.I. Act’), the dishonour of cheque for insufficiency of
funds, is the basic ingredient, which the Court will have to
consider and the issue will have to be decided accordingly. The
judgment is not yet delivered. Though the application for
examining a bank officer is made much belatedly, after the
objection was raised by the Petitioner in his written argument,
the trial is not yet concluded and the reason for dishonour of the
cheque goes to the root of the matter. At this stage, the Court

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cannot deny an opportunity to the complainant to lead the
evidence to prove the basic ingredients of section 138 of the N.I.
Act. Therefore, though there is considerable delay and the
application is made at a much belated stage, the
complainant/Respondent No.2 cannot be denied an opportunity
to lead the evidence, in that behalf. It is needless to add that the
accused/Petitioner shall have all the opportunity to cross
examine that witness and if necessary, to lead his further
defence evidence after such bank officer is examined by the
Respondent No.2. At the same time, it is also necessary to take
note of the statement made by learned counsel for Respondent
No.2 before this Court as noted hereinabove. The cost imposed
on the Respondent No.2, is also inadequate. The cost is not
given to the Petitioner. Learned counsel for the Petitioner is
justified in seeking enhanced cost payable to the Petitioner.
Therefore, to meet the ends of justice, the cost can be enhanced
and can be made payable to the Petitioner.

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11. Hence, the following order :

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O R D E R

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(i)The Respondent No.2 is permitted to examine
one bank officer for the purpose of proving the
cheque dishonour memo and to prove
insufficiency of funds at the relevant time
regarding the cheque which is the subject matter
in C.C. No.2496/SS/2013 before learned
Additional Chief Metropolitan Magistrate, 7th
Court, Dadar, Mumbai.

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(ii) The examination of such witness shall be completed within a period of 8 weeks from today.

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(iii) Both the parties shall remain present before the Trial Court on 11/12/2023 and bring this order to the notice of the Court. The Trial Court shall pre-pone the date of hearing.

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(iv) The Respondent No.2 shall pay cost of Rs.30,000/- to the Petitioner before he examines the bank officer in the said trial.

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(v) With these observations the Petition is disposed of.

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(SARANG V. KOTWAL, J.)

Jubin Shah v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Jubin Shah v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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