1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.662 OF 2009 Shrihari s/o Asaram Jadhav .. Petitioner/ accused. versus The State of Maharashtra and another. .. Respondents (No.2 ori.complt.) Shri D.K.Kulkarni, Advocate for petitioner. Shri B.V.Wagh, A.P.P. for Respondent No.1. Shri K.F.Shingare, Advocate for Respondent No.2. ----- Coram : P.R. Borkar, J. Date : November 23, 2009 P.C. 1. This is a writ petition filed by original accused challenging the order passed by the learned Additional Sessions Judge-4, Aurangbaad in Criminal Revision No. 2 130 of 2009 decided on 25.6.2009, whereby he allowed the applications at Exhibits 25 and 26 in S.C.C. No. 295/2008 which were earlier dismissed by the learned Judicial Magistrate, First Class, Paithan vide his order dated 17.3.2009. 2. Present Respondent No.2 was the original complainant who had filed a complaint for commission of offence punishable under Section 138 of the Negotiable Instruments Act against the writ petitioner. It is the case of the complainant that he is doing business of sale of seeds and fertilizers at Pachod in the name and style "Prasad Krishi Seva Kendara" and he is proprietor thereof. The writ petitioner-original accused had purchased some fertilizer, pesticides and insecticides of value aggregating to Rs.2,45,000/= from the complainant. The accused issued cheque dated 7.1.2008 for said amount in favour the complainant. However, when the cheque was presented by complainant in the bank, the same was returned with remarks "funds not arranged". Thereafter although complainant issued legal notice to the accused there was failure on the part of accused to pay the said amount and hence, the complaint was lodged. 3 3. The complainant adduced his evidence by way of affidavit on 7.11.2008 and was cross examined on behalf of the accused on 28.11.2008. Thereafter on 17.12.2008, the complainant filed two applications at Exhibits 25 and 26, the copies of which are produced at Exhibit C collectively. In the said application Exhibit 25, it is stated that the complainant was asked questions in his cross examination regarding bill books and licence and, therefore, he has given the separate application seeking permission to produce duplicate bills and original licence. In order that there should not be any dispute regarding bills, brother of the complainant i.e. Hanuman Ankushrao Narwade be permitted to be examined, as he was knowing the transactions. 4. In application Exhibit 26,it is mentioned that the complainant in his cross examination was asked about the bills and licence to which he had answered that the original bills were given to the accused and duplicates were with him.It was further stated in the application thatin order to leave no dispute regarding bills and the licence and in the interest of justice the complainant wants to produce duplicate bills and 4 original licence issued to him with a list and the same may be accepted. 5. Writ petitioner-accused filed his say at Exhibits 28 and 30 to the said applications and opposed the production of documents, so also examination of additional witness. It is the say of the accused that by the cross examination, the accused has disclosed his defence and pointed out the defect in the case of the complainant and therefore, there is attempt on the part of the complainant to rectify defect in his case. As regards application at Exhibit 25, it is the case of the accused that name of Hanuman was not mentioned by the complainant in the complaint, so also in his evidence before the court and therefore attempt to examine Hanuman is only to cure the defect in complainant's case pointed by accused in his defence. 6. The learned Magistrate, after hearing both the sides and after referring to the case of Amir Kumar vs Mahesh Dabholkar 2008 (1) Bombay CR (Cri.)998, held that if production of documents is allowed, the defence will be washed out. When the documents are in custody of the complainant, he ought to have produced the same along with complaint itself, or at least when 5 he filed affidavit in lieu of examination-in-chief and,therefore, production of documents was denied. For the same reasons, permission to examine additional witness is also denied. It is observed that the name of the Hanuman Narwade sought to be examined as witness, was not disclosed by complainant either in the complaint nor in the examination-in-chief. There is no explanation on the part of the complainant as to why name of brother Hanuman was not shown in the complaint or what prevented the complainant from examining Hanuman as witness earlier. 7. The learned Additional Sessions Judge-4, Aurangabad, in his revisional jurisdiction held that the evidence of the complainant was not over and at that stage, applications (Exhs.25 and 26) were given. He referred to Section 311 of the Code of Criminal Procedure 1973 and observed that to meet the ends of justice and in order that truth should come before the court, production of documents is necessary. He also observed that if witness is examined by the complainant, the accused has right to cross-examine the witness so as to bring the truth on record. Revision Application No.130 of 2009 was, therefore, allowed. 6 8. Heard Shri D.K.Kulkarni, learned Advocate for the writ petitioner, Shri B.V.Wagh,learned A.P.P. for Respondent No.1 and Shri K.F.Shingare learned Advocate for Respondent No.2. 9. It is submitted by Advocate Shri D.K.Kulkarni that in the first place, revision should not have been entertained by the learned Additional Sessions Judge as the orders on applications (Exhs. 25 and 26) were interlocutory in nature and as such there was bar under Section 397 (2) of the Cr.P.C. to entertain the revision against those interlocutory orders. 10. Advocate Shri D.K.Kulkarni referred to certain authorities and submitted that the applications (Exhs. 25/26) were rightly rejected by the learned Magistrate, but the learned Revisional Court without any proper reasons, allowed those applications and therefore this court should interfere in exercise of its extra-ordinary powers. 11. As against that, Advocate Shri Shingare submitted that the orders on applications at Exhs.25 and 26 are not of interlocutory nature and were rightly allowed in the exercise of revisional jurisdiction by the Sessions 7 Judge. This Court should not interfere by exercising its extra-ordinary jurisdiction. 12. In the case of Umesh Nanaji Shinde vs. Moreshwar Namdeo Raut, 2007 ALL MR (Cri.) 2433, Single Bench of this Court referred to two authorities. In the reported case, statement of the accused under Section 313 of Cr.P.C. was over and at that stage application was made. It was observed that it was not alleged by the complainant that he had discovered any new fact and, therefore, he could not make the application earlier. So, there was clear attempt to lead evidence after the defence was closed. Same was also the fact in one of the cases referred to in paragraph 7 of the judgment in para 7 of the case of Umesh (supra). 13. Second case relied upon by petitioner is Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738. In paragraph 21 of the said case, it is observed thus; "21. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely 8 raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." 14. On the other hand, Advocate Shri Shingare for Respondent No.2 referred to paragraph 15 of the case U.T. Dadra & Nagar Haveli vs. Fatehsingh Mohansingh Cahuhan(2006) 7 SCC 529. Paragraph 15 reads :- "15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or reexamining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. " 9 15. Learned Counsel for Respondent No. 2 also cited case of Amar Nath vs. State of Haryana AIR 1977 SC 2185. In that case, expression "interlocutory order" used in Section 397 (2) Cr.P.C. was considered. Learned counsel referred to paragraph 6 and stated that in present case, orders on Exhibits 25 and 26 substantially affect the right of the complainant and those orders in a way decide his rights. 16. This court is called upon to exercise its extra- ordinary writ jurisdiction. In this case, the statement of the complainant recorded by the trial court is produced on record. Examination-in-chief is in the form of affidavit and thereafter the complainant was subjected to cross examination. Questions were asked to complainant regarding bills and it is stated that the original bills were not produced. The question was also asked regarding licence and it is admitted that the licence was not produced. If we consider the applications (Exhs. 25 & 26), it becomes clear that no new document is sought to be produced. It is stated in the complaint, so also in examination-in-chief which is in the form of affidavit that the complainant was running a shop 10 and the accused was his regular customer. It is also stated that the purchases were made by accused on credit and the amount of the cheque was due. So, the documents sought to be produced are not something new. In fact, it is the case of the complainant that the original bills being with the accused, he wants to produce duplicate bills which were with him. 17. So far as examination of Hanuman as witness is concerned, it is stated that in order that there is no dispute regarding bills and since Hanuman knows all transactions between complainant and accused, permission is sought to examine Hanuman as witness. 18. Considering the fact that the applications (Exhs. 25 and 26) were filed when the evidence of the complainant was being led before the court and it was not the stage where accused had given his statement under Section 313 of cr.P.C. or adduced his evidence, applications cannot be said to have been given at a belated stage. The discretion used by the learned Additional Sessions Judge cannot be said to have been used illegally or improperly.In fact, the accused will have every opportunity to cross examine witness Hanuman and he can also challenge validity of the 11 duplicate bills and signatures thereon which are alleged to have been made by the accused. The licence of the shop is also a document, original of which was being produced. No prejudice or injustice is caused to the accused by grant of applications Exhs. 25 and 26. 19. In the facts and circumstances, I am of the opinion that it is not a case fit for intervention in extra ordinary writ jurisdiction into the discretion used by the Additional Sessions Judge. Hence, Writ Petition is dismissed. pnd/ (P.R.BORKAR, J.) criwp662.09