1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Revision Application (St.) No.525 of 2009 Sitaram Churiwala .. .. Applicant/ Org.Complainant v/s. M/s.Comet Tapes Pvt.Ltd. & ors. .. Respondents (Ori.accused Nos.1 & 2) Mr.Jehangir Khajotia i/by M/s.B. Amin & Co. for Applicant. Mr.V.M. Talreja for Res.Nos.2 & 3. Mr.S.R.Shinde, APP for State. ----- CORAM : SMT.ROSHAN DALVI, JJ. Dated : 23rd November, 2009 P.C. : 1.This Revision Application is against the order of the learned Sessions Court, Greater Mumbai, dated 3.4.2009, which was passed in Criminal Revision Application No. 1105 of 2008 against the order of the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, dated 19.9.2008. 2. A criminal complaint under Section 138 of the Negotiable Instruments Act was filed. The complainant has been examined and extensively cross-examined by and on behalf of accused Nos.1 to 3 as well as separately on behalf of accused Nos.4 and 5. 2 3.The case of the complainant has been made out, inter alia, under a Memorandum of Understanding (MOU) in which he was given a project consultancy. The complainant has been cross-examined with regard to the arrangement of the working capital, obtaining loan from the bank, debit note that was executed by one of the Directors, the project document, the arrangement for power supply, the permission from Pollution Control Authority, non-construction of factory machinery, the cost of the project, account number of the accused etc. The cross-examination came to be completed on 13.7.2004. 4.The complainant has not examined any other witness. The Director has not examined himself or any either witness. 313 statement of one of the Directors of the accused Company has come to be recorded. 5.More than 2 years thereafter on 29.8.2006, an application for recalling the complainant for further cross-examination under Section 311 of the Criminal Procedure Code came to be made. This application shows the need for further cross-examination upon two documents viz. the MOU and the debit note. The case for further cross-examination came to be made out in paragraphs 1, 2 and 3 of that application. It was the 3 case on behalf of the accused that his Advocate did not fully cross-examine the complainant and hence, a new Advocate, who was appointed, wanted to cross-examine the complainant. Paragraph 4 of the application states that the earlier Advocate of the accused has not completely probed the contents of the Affidavit in evidence in respect of the documents annexed to the complaint and hence, the application was made under Section 313 of the Criminal Procedure Code for recalling the complainant. The learned Magistrate has observed that the witness was extensively cross- examined. The cross-examination was not shown to be abruptly closed down. The accused had not stated that they were denied the opportunity to fairly conduct the trial. Just because the Advocate was changed is not the reason for recalling the witness. The reasoning is correct. Recalling the witness under Section 311 of the Criminal Procedure Code is to be allowed, if the evidence that is required to be led appears to be essential to the just decision of the case. The cross- examination is extensively done. What further evidence is required, is not stated in the application for recalling the witness, except for the positive case of the accused that the complainant had failed to render various services agreed upon in the MOU for setting up the entire project and that the debit note was executed by accused No.4 in collusion with the complainant. 4 6. I have gone through the entire cross-examination. For putting up this positive case, no further cross- examination is required. However, the accused may examine themselves but subject to such examination, the order of the learned Magistrate is seen to be correct. 7.The learned Sessions Judge has interfered in Revision, though this is an interim order and has not disposed of the entire complaint. He has interfered on the ground of interest of justice. It was argued before him that the material aspect of the case, particularly the MOU and the service of the notice have not been put to the complainant. The aspect relating to the MOU has been put in detail. The application did not even mention about the service of notice. It is seen hat these two facts are further aspects required by another Advocate on behalf of the accused. This application is made after two and half years. Without eliciting what is the evidence essential for the just decision of the case, the learned Judge has accepted the case of the accused that questions with regard to MOU and service of notice are liable to be put to the complainant. 8.The parties are required to proceed with discipline. The discipline is set out in the procedure code. 5 Section 311 is an equitable provision requiring specific evidence which is not allowed to be led. Merely vaguely mentioning that some aspects of the case are put to a witness, who has been extensively cross- examined, is an abuse of the process under Section 311 of the Criminal Procedure Code. 9.The Advocate for the Applicant herein has drawn my attention to the order in the case of Sethuraman vs. Rajamanickam, 2009 ALL MR (Cri) 1588 (S.C.)in which after the cross-examination of the complainant several documents were sought to be put to him and he was sought to be recalled. This application was granted by the High Court without notice to the complainant. The application under Section 311 for recalling the complainant was not allowed by the Supreme Court on the ground that it was an interlocutory order, against which the Revision Application was not maintainable. 10.The Advocate for the accused relied upon the case of Sama Ram vs. State of Rajasthan, 2002 Criminal Law Journal 3134 stating that the application for summoning material witness can be made at any stage and that recalling the witness can also be made at any stage. That is trite law. However, for what purpose a witness is recalled has to be understood and appreciated by the Courts. The Courts must be satisfied about what is the 6 further evidence required to be led upon recall of the witness and the Courts must be satisfied that that would be essential to the just decision of the case as per the mandate of Section 311 of the Criminal Procedure Code. 11.Upon my query, the Advocate for accused Nos.2 and 3 stated that the complainant had not performed the obligations under the MOU and had abandoned the contract. Hence, he had to be cross-examined on that ground. He also stated that the other Director, accused No.4, issued a debit note in collusion with the complainant. These are two positive aspects. The two Directors can lead evidence on these aspects. The complainant has been cross-examined already on what work he has not done under the contract. It is reflected from the cross-examination that, inter alia, he has not provided the construction of factory machinery, he has no documents to show that he obtained permission from the Pollution Control Authority, he has no documents to show that he procured supply of water and plant as promised under the contract, etc. Consequently, his further cross-examination with regard to the MOU is not necessitated. The positive case of abandonment of contract by the complainant and the collusion between the parties in execution of the debit note can be made out only under the positive evidence 7 of the accused. 12.Consequently, it is seen that the refusal by the learned Magistrate to recall the complainant is not improper. The grant of the order of recall by the Sessions Judge is without following the mandate of Section 311 of the Criminal Procedure Code. It is also seen that the application has been made after change of the Advocate two and half years after the complainant s evidence was completed. The argument on behalf of the complainant-Applicant herein that the application lacks bona fides and is made to bind time, prima facie, appears to be not without reason. Hence, the following order:- ORDER The order of the learned Sessions Judge suffers from a material irregularity as it has not considered the parameters of Section 311 of the Criminal Procedure Code. The order is set aside. The complainant need not be recalled. However, accused Nos.2 and 3 in the complaint shall be entitled to lead evidence of either of them with regard to any positive case they might want to make with regard to any aspect. 13.It is seen that this case has remained pending after 8 the evidence of the complainant since 2004. If accused Nos.2 and 3 desire to lead any evidence, they shall file their Affidavit of examination-in-chief within 4 weeks from today. They shall submit themselves to cross-examination by remaining present on each date of hearing thereafter. 14.The learned Magistrate is requested to expedite the cross-examination of the accused, as required on the next date fixed by the Court and proceed with the trial expeditiously. 15.The Criminal Revision Application is disposed of accordingly. [SMT.ROSHAN DALVI, J.]