1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.5 OF 2009. Miss.Bharati Sukhdeo Patare ... Petitioner. Versus Deepak Narsingh Yeri ... Respondent. ... Mr.N.C.Garud, advocate for the petitioner. ... CORAM : V.R.KINGAONKAR,J. Date : 23.07.2009. PER COURT 1. By this petition, the petitioner challenges order dated 6.10.2008, rendered by the learned Judicial Magistrate (F.C.), Ahmednagar, below application (Exh.59), in a Summary Case beairng (STC No.2975/2007). 2. The petitioner is original accused in the private complaint case which is pending 2 before the learned Judicial Magistrate for offence U/s 138 of the Negotiable Instruments Act. The Respondent is complainant and alleged that the cheque issued by the petitioner was in the context of a transaction which had taken place in the year 2007. She asserted that the cheque was issued by the petitioner in order to discharge the financial liability arising out of the said transaction. The cheque was dishonoured and inspite of demand notice, the amount was not paid by the petitioner which entailed the prosecution for offence U/s 138 of the N.I. Act. 3. The Respondent examined herself and adduced the necessary evidence in support of the complaint case. The petitioner got examined a witness from the Income tax Department in support of his defence that there was no such transaction pertaining to the period mentioned in the complaint. The statement of the petitioner U/s 313 of the Cr.P.C. was recorded. Thereafter, the Respondent submitted an application for calling Chartered Accountant to prove the relevant information given in the return for the period 3 2008-09. The learned Magistrate allowed the application though it was objected to by the petitioner. Feeling aggrieved, the petitioner impugns the said order. 4. Heard learned counsel for the petitioner. None appears for the Respondent though served. 5. What transpires from the record is that the witness from Income tax Department had not produced the relevant Income tax Returns pertaining to the year 2008-09. He had produced the relevant record only up to to the period of 2008. The examination of the Chartered Accountant is sought in order to corroborate the information furnished while filing return of 2008-09. It is argued by learned counsel for the petitioner that such examination of a witness at belated stage is impermissible. He argued that the intention of the Respondent/complainant is to fill up the lacuna and to plug the wholes. He seeks to rely on certain observations in "R.N.Kakkar Vs. Hanif Gafoor Naviwala and others" 4 1996 Cri.L.J.365. 6. The powers U/s 311 of the Cr.P.C. are available as and when the Court is of the opinion that examination of a witness is required when it appears to the Court that it would be essential for the purpose of just decision of the case. The power available to the trial Court is thus discretionary. The exercise of discretion may be faulted with only when it is demonstrated that the same is arbitrarily used. The purpose is to ensure that the cause of justice is served. The petitioner will be at liberty to seek information from the witness as to why the transaction was not shown in the earlier returns pertaining to the year 2007-08 and why the transaction is subsequently shown in the Income tax Return for 2008-09. The Chartered Accountant is not likely to be a person who would exhibit excessive interest in the cause of a party. The summoning of a witness can be at any stage before the arguments are advanced. In case of "R.N.Kakkar Vs. Hanif Gafoor Naviwala and others" (supra), the application was filed to admit additional 5 evidence after the arguments were advanced and concluded. It was so filed when the date was fixed for judgment. It is well settled that once the matter is posted for judgment then the further evidence can not be adduced. The jurisdiction of the Court to issue summons to a witness is not taken away only because of the fact that the application is moved at later stage before commencement of the arguments. The learned Judicial Magistrate seems to have assigned reasons in support of the order. He has observed that no prejudice is likely to be caused to petitioner/accused. I do not think that admissions already obtained by the petitioner from cross-examination of the Respondent are likely to be erased due to examination of such witness. The examination of the witness, it may be demonstrated during cross-examination, was to bring some inconsistent material on record. In this view of the matter, I do not find any substantial reason to interfere with the discretionary order of the learned Judicial 6 Magistrate. The petition is, therefore, dismissed. (V.R.KINGAONKAR,J.) asp/office/Crwp509