drp {1} CWP No.612/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.612 OF 2010 Sunil s/o Bhanudas Birle PETITIONER Age-42 years, Occ-Business R/o Vivekanand Chowk, Latur, Dist-Latur VERSUS 1. Usman Noorkhan Pathan RESPONDENTS Age-33 years, Occ-Business R/o Islampura, Bilal Galli, Shahu Chowk, Latur, Dist-Latur 2. The State of Maharashtra ....... Mr.Sachin S.Deshmukh, Advocate for the petitioner Mr.S.P.Urgunde, Advocate for respondent No.1 Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 31st March 2011 ORAL JUDGMENT: 1. At the oral request, leave to add State as a Party drp {2} CWP No.612/2010 respondent is granted. Amendment to be carried out forthwith. Learned APP accepts notice on behalf of newly added respondent- State. 2. By this petition, under Article 227 of the Constitution of India, the petitioner, complainant in STCC No.4576/2006 filed under section 138 of the Negotiable Instruments Act, before JMFC, Latur, has prayed for quashing of the order dated 03.06.2010 passed below Exhibit-69. 3. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at the stage of admission. 4. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus - Petitioner runs a cement agency, named and stayed as “Birle Cement Agency” at Latur so also respondent No.1 runs a shop named and styled as “City Gold Traders” at Latur. On 8th August 2006, respondent No.1 had purchased 250 bags of cement from the petitioner, cost of which was Rs.1,21,600/-. Respondent No.1 had paid Rs.33,600/- in cash and had issued a cheuqe for the balance amount drawn on Solapur Janta Sahakari Bank, dated 12th September 2006. The said cheque, when presented by the petitioner, on 9th October 2006, was bounced for want of sufficient drp {3} CWP No.612/2010 funds. Thereafter, a statutory notice was issued by the petitioner to respondent No.1 on 9th October 2006. Admittedly, inspite of receipt of the said notice, no reply was given by the respondent No.1 to the same. After completing the necessary formalities, a complaint u/s 138 of the Negotiable Instruments Act, came to be filed by the petitioner. It appears that respondent No.1 had appeared in the said complaint and after recording of the evidence was over, respondent No.1 was examined u/s 313 of the Criminal Procedure Code. It further appears that thereafter the matter was posted for arguments. The petitioner submitted written arguments on 31.05.2010. It appears that when the turn of respondent No.1 to make arguments came, he filed an application at Exhibit-69 on 02.06.2010 contending that he intends to lead evidence challenging as to whether the shop of the petitioner is a proprietary or partnership firm. It also appears that the application (Exhibit-69) was opposed by the petitioner, by filing say contending that in the examination of respondent u/s 313 of the Criminal Procedure Code, he has stated that he does not want to lead any defence in support of his case and thereafter the complaint was listed for arguments and this is not the stage to lead evidence. It appears that after hearing both the parties, trial court allowed the application Exhibit-69 vide order dated 03.06.2010, which is impugned in this petition. 5. In paragraph No.2 of the impugned order, it is observed that the application was treated u/s 311 of the Criminal drp {4} CWP No.612/2010 Procedure Code and discretionary powers are vested in the Court to call or recall witnesses at any stage of the trial. It is further observed that to bring on record the fact as to whether the shop of the petitioner is a proprietary or partnership firm, it is necessary to give opportunity to the accused. I my opinion, this order is not in consonance with section 311 of the Cr.P.C. Witness can be called or recalled at any stage of trial to meet the ends of justice, however that does not mean the the defence which is not taken at the time when the legal notice was served before institution of the complaint and all of a sudden, after recording of evidence is over and when the matter was listed for arguments, to make an application to lead evidence to challenge the authority of the petitioner is not permissible. In my view the application moved by the respondent No.1 is nothing but an abuse of process of law and an attempt to protract the trial. It was expected that this defence should have been taken by respondent-accused at the time, the legal notice was served on him and then he could have established the said defence by way of cross examination of the complainant or by leading defence evidence. In absence of any such defence, taken in reply to the notice, now respondent No.1 cannot take this stand. 6. In the result, the defence, which the respondent intends to establish is not relevant for the decision of the criminal complaint pending before the trial court. Thus, the impugned order passed below Exhibit-69 is liable to be quashed and set aside. drp {5} CWP No.612/2010 7. Consequently, the petition is allowed. The order dated 03.06.2010 passed below Exhibit-69 in STCC No.4576/2006 by JMFC, Latur is hereby quashed and set aside. Rule is made absolute as indicated above, with no order as to costs. [A.V.POTDAR, J.] drp/B10/cwp612-10