* 1 * W.P-2655-2011 23 Dec, 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2655 OF 2011 Gyaniram Atkari .... Petitioner : V/S. : I.T.L. Tours and Travels Pvt. Ltd.& Anr. .... Respondents * * * * Mr. P.M. Khamkar, Advocate for the petitioner. Mr. Aslam Khan, Advocate for respondent no.1. Mr. S.A. Shaikh, APP for State-respondent no.2. * * * * CORAM :- Smt. R.P. SondurBaldota, J. 23rd December, 2011. P.C. :- 1. The petitioner, who is an accused in Criminal Case No. 3146/SS/2009 filed by respondent no.1 for the offences punishable under Section 138 Negotiable Instruments Act, challenges, by this petition, the order dated 24th March, 2011 passed on an application under Section 311 Criminal Procedure Code filed by respondent no.1. The petition does not disclose Criminal Revision Application No. 629 of 2011 preferred by the petitioner to the Court of Sessions which was dismissed by the order dated 16th July, 2011. Mr. Khamkar, the learned Counsel for the petitioner, seeks to explain the * 2 * W.P-2655-2011 23 Dec, 2011 nondisclosure by submitting that dismissal of the Criminal Revision Application by the Sessions Court was on the ground of it’s maintenability and not on merit. Mr. Khan, the learned Counsel for respondent no.1, has produced certified copy of the order dated 16th July, 2011 passed by the Sessions Court on the Revision Application. Perusal of the order shows that the submission of Mr. Khamkar is not correct. The Sessions court has dismissed the Revision Application by considering the merits of the order impugned therein and not on the ground of it’s maintenability Irrespective of that, there is no doubt that the petitioner ought to have disclosed the proceedings, which is a material fact in the present petition. 3. Mr. Khamkar, the learned Counsel for the petitioner, submits that the provision of Section 311 Criminal Procedure Code is not applicable to summons cases. He also states that the application could not have been filed after the entire trial was over and the only thing that was remaining was the arguments to be advanced by both the sides. 4. Section 311 Criminal Procedure Code reads as follows : 311. Power to summon material witness, or examine person present.- “ 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 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.” * 3 * W.P-2655-2011 23 Dec, 2011 Bare reading of the Section, is sufficient to know that an application thereunder can be considered by any Court at any stage of any enquiry, trial or proceedings. The only condition that is required to be met while filing application under Section 311 Criminal Procedure Code is that the evidence proposed to be brought by the applicant, should be essential for the just decision of the case. Besides, the power under Section 311 Criminal Procedure Code is a discretionary power. As long as the power is exercised judiciously and not arbitrarily, the order is not to be interfered with by the higher Courts. While exercising it’s discretion, the trial Court took note of the change in the defence of the petitioner disclosed in the cross-examination of the prosecution witnesses and that disclosed in his statement under Section 313 Code of Criminal Procedure. Respondent no.1 had examined two witnesses. While cross-examining these witnesses, the petitioner had come up with the defence that the cheque in question was a blank cheque, issued towards security which had been misused. However, later in his statement under Section 313 Criminal Procedure Code explaining the evidence, the petitioner took a stand that the cheque drawn was not on his account and the cheque does not even bear his signature. In order to counter the stand taken for the first time in the statement under Section 313 Criminal Procedure Code, respondent no.1 filed application under Section 311 Criminal Procedure * 4 * W.P-2655-2011 23 Dec, 2011 Code for examining a witness. The trial Court on consideration, allowed the same with an opinion that since the burden was on the complainant to establish that the accused was the account holder and the signatory of the cheque, the application filed at the stage was justified. The trial Court has thus considered all the aspects while exercising the discretion vested in it. The Sessions Court has considered the same aspects in rejecting the Criminal Revision Application filed by the petitioner to challenge the order of the trial Court. No infirmity whatsoever is found in the impugned order. 5. As regards the submission of Mr. Khamkar that the provision of Section 311 Code of Criminal Procedure is not applicable to the summons cases nothing in support of the same can be found in the language of Section. On the contrary, the procedure established under Code of Criminal Procedure indicates otherwise. The Section forms part of Chapter XXIV of Code of Criminal Procedure, which has heading General Provisions as to Enquiries “ and Trials”. Therefore, it would be as much applicable and relevant to the summons cases as the warrant cases and the Sessions cases. 6. The petition is dismissed. [SMT. R.P. SONDURBALDOTA, J]