1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1266 of 2010 Ravi Sundarlal Khurana ..VERSUS.. Mahesh Shyamlal Agrawal and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R. R. Vyas, Advocate for the applicant Mr. M. M. Agnihotri, Advocate for respondent no.1 Ms. Shweta Gajbhiye, Advocate for respondent no.2 CORAM : Prasanna B. Varale, J. DATED : 21 st January , 2011 . 1. Heard Mr. R. R. Vyas, learned Advocate for the applicant, Mr. M. M. Agnihotri, learned Advocate for respondent no.1 and Ms. Shweta Gajbhiye, learned Advocate for respondent no.2. 2. By the present application under Section 482 of the Code of Criminal Procedure, the applicant is challenging the order dated 21/5/2010 passed by the learned Judicial Magistrate, First Class, Pulgaon below application Exh.112 in Summary Criminal Case No. 764/2005. 3. The brief facts giving rise to the present application are that the applicant is a complainant who has lodged a criminal complaint case against the present non-applicants for commission of offence punishable under Section 138 of Negotiable Instruments Act. The case of the complainant is that out of business transaction, a cheque of Rs.3,00,000/- was issued to him by non-applicant no.1. He presented the said cheque for encashment in his bank, which came to be 2 dishonoured for the reasons "insufficient funds". A demand was made by the applicant by issuing notice for payment, but inspite of the demand, the amount was not paid and as such a complaint case was lodged against the non-applicants for the offence punishable under Section 138 of N.I. Act in the Court of J.M.F.C., Pulgaon. The learned Magistrate issued process against the non-applicants. The plea of the applicant/complainant was recorded and he chose to close his evidence. Initially, the applicant, by an application (Exh.101) dated 08/4/2009, had filed a list of documents and sought permission to file the documents. Thereafter, an application (Exh.102) was preferred for exhibiting the documents along with the list of the documents, but the same was rejected by the trial Court. By preferring an application (Exh.112), the applicant/ complainant sought to summon the Clerk/Officer of the Income Tax Department for the purpose of adjudication of the case and for fair trial, however, the learned Magistrate, by order dated 21/5/2010 rejected that application (Exh.112) and being aggrieved by the said order, the applicant has approached to this Court by filing present application. 4. Mr. R.R.Vyas, the learned Advocate for the applicant has submitted that the learned Magistrate has failed to consider that under Section 311 of Code of Criminal Procedure, at any stage any witness can be called for fair trial and rejection of his application by the learned Magistrate has caused a serious prejudice to the applicant/complainant. The learned Advocate has further submitted that the applicant/complainant is a private person and to show the transaction and ultimately to prove the existence of legally enforceable debt, the application (Exh.112) was moved by the complainant for summoning the Clerk/Officer of the I.T. department. He further submitted that the learned Magistrate was pleased to call for the say of 3 the non-applicants and as the non-applicants raised their objection, the learned Magistrate has rejected the application ignoring the fact that in view of the objection raised by the non-applicants, it was necessary for the applicant to examine the Officer of Income Tax department to prove the documents. 5. Per contra, Mr. M. M. Agnihotri, learned counsel for respondent no.1 and Ms. Shweta Gajbhiye, learned counsel for respondent no.2 have supported the order passed by the learned Magistrate. Mr. Agnihotri, learned counsel for respondent no.1 has submitted that initially, vide application Exh.101, the applicant had filed a list of documents under which he had submitted his Income Tax returns to the Income Tax department and the bank statements. The learned trial court was pleased to allow the said application and the documents were taken on record. Subsequently, the applicant had preferred the application (Exh.102) for exhibiting the documents and by order dated 09/10/2009, the learned trial court rejected the said application. Mr. Agnihotri, learned Advocate has further submitted that the applicant, after considerable gap of six months, had filed application (Exh.112) for summoning the Clerk/Officer of the Income Tax Department. There was no reason apart from any plausible reason to show as to why immediate step was not taken by the applicant after rejection of application (Exh.102). As there was no challenge to the order passed on application (Exh.102), the order has attained finality. The learned Advocate has further submitted that the applicant, by the procedure unknown to the law, is trying to do something which was not possible to do directly and if a thing which cannot be done directly, cannot be done indirectly. He further submitted that in the cases of offences under Negotiable Instruments Act, it is expected that the trial should conclude as early as possible and the applicant by resorting to 4 delaying tactics, wants to prolong the trial. According to him, as the applicant/complainant is trying to fill up the lacuna, the prejudice would be caused to the non-applicants and not to the applicant, which is tried to be submitted by the applicant. 6. I have heard the learned Advocate appearing for the respective parties at length and with their assistance, gone through the record. 7. It is not in dispute that by invoking the powers under Section 311 of Cr.P.C., a witness can be recalled, but this power has to be used sparingly, keeping in mind the ultimate object that denial of recallingof a witness, would result in miscarriage of justice or depriving an opportunity of fair trial. 8. The facts as revealed from the rival contentions of the learned Advocates for the parties as well as from the record placed for perusal are that the applicant /complainant closed his evidence after recording of his plea and at the belated stage i.e. at the time of advancing the final arguments, an application (Exh.112) was moved by the applicant. The applicant sought to summon the Clerk/Officer of the Income Tax department to support his contentions that the cheque was issued for legally enforceable debt and the amount is referred to in the Income Tax returns submitted by the applicant and the receipt/statement issued by the bank. It is not in dispute that the applicant had submitted his Income Tax returns. The returns were submitted on his own. It is also not in dispute that the bank statements do not bear the seal and signature of the bank official, who had issued it nor there is any attestation of the bank official on it. The application (Exh.112) do not reveal the name of the Clerk or Officer of the Income Tax 5 department, due to which it is very difficult to arrive at a conclusion as to whom the applicant wants to call as his witness to prove the documents. 9. In view of the above mentioned facts, the applicant has utterly failed to substantiate the reasons which necessitates summoning the Clerk/Officer of the Income Tax department. The view taken by the learned Magistrate is justified in the facts of the present matter. There is no merit in the application. No case is made out for indulgence at the hands of this Court. 10. In the result, these application is rejected and disposed of accordingly. JUDGE Diwale