wp2142-09.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2142 OF 2009 Mrs. Sangita Suketu Shah .. Petitioner Versus Sudhir Mardia and another .. Respondents Ms. P.V. Badadare for the Petitioner Mr. Anil Agarwal for Respondent No.1 Ms. U. V. Kejriwal, APP for the State CORAM : J.H. BHATIA, J. DATE : 21st April, 2011. P.C.: 1. Rule. Rule made returnable forthwith. 2. Heard learned counsel for the parties. 3. The Petitioner, who is original complainant, filed a complaint under section 138 of the Negotiable Instruments Act against the respondent No.1, who is original accused. The said complaint was registered as Case No. 295/SS/2006 and is pending before the learned Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai. The complainant claimed to be a proprietor of M/s Gokul Constructions. The cheque in question was allegedly issued by the accused in favour of M/s Gokul Constructions. The complainant examined herself as well as her husband to prove that she was proprietor of M/s Gokul Constructions and, therefore, she had filed a complaint in her own name. The 1 wp2142-09.sxw accused denied that the complainant was proprietor of M/s Gokul Constructions and contended that she, being not proprietor of M/s Gokul Constructions, had no right or authority to file the Complaint in her own name. After recording of the evidence lead by the complainant and the statement of accused under section 313 of the Criminal Procedure Code as defence witness and hearing of the arguments, the complainant filed an application to call for a Bank officer as prosecution witness with direction to produce certain documents which could show that the complainant was a Proprietor of M/s Gokul Constructions. The application was opposed on the ground that it was made at a belated stage and just to fill in lacuna in the prosecution case. The learned Magistrate, however, allowed that application on the ground that the complainant wanted to call for the record from the Bank to support her contention that she is Proprietor and this would not amount to filling of lacuna. That order was challenged by the accused by filing Criminal Revision Application No.1248 of 2009 before the Sessions Court at Mumbai. Learned Additional Sessions Judge allowed the revision application by the impugned order dated 23/7/2009 and set aside the order passed by the learned Magistrate directing to issue summons to the Bank officer. That order is challenged in the present petition by the original complainant. 4. On perusal of the record, it is clear that in the complaint itself, the petitioner had contended that complainant was a 2 wp2142-09.sxw proprietor of M/s Gokul Constructions and in the evidence the complainant as well as her husband PW-2 Sukute Shah had maintained that the complainant was Proprietor of M/s Gokul Constructions and that was not challenged in the cross examination nor was denied by the accused in his own evidence as defence witness. 5. It is a fact that recording of evidence of prosecution witness- PW-2 was completed on 2nd August, 2008 and thereafter statement of the accused under section 313 of the Cr. P. C. was recorded and then in September, 2008 evidence of accused as defence witness was also recorded and completed. On 1/10/2008 written arguments were submitted by the complainant and the matter was adjourned to 22nd October, 2008 for argument on behalf of the accused. On that day the accused submitted written argument. At the same time, the complainant also filed the application under section 311 Cr. P. C. to call the bank officer to produce certain documents to prove that she was a proprietor of M/s Gokul Constructions. The learned counsel for the accused- respondent contended that when the arguments were completed, the next stage was only of delivering judgment and at that stage an attempt was made on behalf of the complainant to call for the witness to fill in lacuna. According to him if that lacuna is not filled in, the complaint may possibly fail because she is unable to prove that she was proprietor of M/s Gokul Constructions. In support of his contention that the prosecution 3 wp2142-09.sxw cannot be allowed to call or recall witnesses just to fill in lacuna, he relied upon B. D. Goel Vs. Ebrahim Haji Husain, 2001 I Cri. L.J.450. In that case, on behalf of the prosecution, number of witnesses were examined. After the lengthy trial, an application was made by the prosecution to recall PW-1 to prove certain facts and to produce certain documents. That application was rejected by the trial Court on the ground that it would tantamount to allowing the prosecution to fill up lacuna. Rejection of that application was challenged before the High Court. The High Court agreed with the trial Court and dismissed the petition. 6. In the present case, the consistent story of the complainant was that she was proprietor of M/s Gokul Constructions and she had led oral evidence in support of her case. Possibly at the fag end of the trial it struck to her that documentary evidence about the proprietorship was available and, therefore, she made an application to issue summons to call the bank officer to produce the bank record to establish that she was proprietor and that application was allowed by the trial Court holding that it does not amount to fill in lacuna and it was in consistent with the oral evidence already placed on record. The documentary evidence which was sought to be produced was not something created during or at the end of the trial. The said documentary evidence was already in existence and it was sought to be produced before the Court to support the claim of 4 wp2142-09.sxw the complainant. 7. Section 311 of the Cr.P. C. P. reads thus: "311. Power to summon material witness, or examine person._ 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 re-call and re- examine any such person if his evidence appears to be essential to just decision of the case." From this it is clear that any court, at any stage of any inquiry, trial or other proceeding may summon any person as a witness, or recall and re-examine any person already examined if Court feels that his evidence is essential to the just decision of the case. The words 'just decision' are very important. If the production of the document is likely to help the Court in giving just decision, the Court may call or recall any witness at any stage before the judgment is delivered. 8. In the present case the trial Court found that it was in the interest of justice to call the witness from the Bank and, therefore, allowed the application of by invoking powers under section 311 of the Cr. P.C. In my opinion, the learned Magistrate was perfectly correct in his approach. The learned Additional Sessions Judge went on technical reasons to find fault with the said order and was swayed away by the arguments advanced on behalf of the accused that the bank officer was called only to fill in lacuna. In my opinion, the learned Additional Sessions Judge was not correct. The order passed by the learned Magistrate to 5 wp2142-09.sxw summon the bank officer as witness is purely an interlocutory order passed during the proceeding of the criminal case. That order did not put an end to the litigation. The said order could not be called even intermediate. Subsection (2) of Section 397 of the Cr. P. C. clearly provides that the powers of revision conferred by sub-section(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or any other proceedings. Not only this, the learned Additional Sessions Judge could not exercise the revisional jurisdiction in relation to interlocutory orders passed by the trial Court. Therefore, the revision application could not be entertained by the Sessions Court against the order calling the witness. On this ground also, the order passed by the learned Sessions Court is liable to be set aside. 9. In view of the aforesaid reasons, the petition is allowed. The impugned order passed by the Sessions Court is hereby quashed and set aside and the the order passed by the learned Magistrate dated 18.11.2008 is hereby restored. 10. Rule is accordingly made absolute. ( J.H. BHATIA, J. ) 6