1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2848 OF 2009 Smt.Sushma Sakharam Satan ... Applicant versus The State of Maharashtra & Anr ... Respondents ... Mr.M.K. Kocharekar for the applicant. Mr.Archit Sakhalkar for respondent no.2. Ms.M.H. Mhatre APP for the State. CORAM : D.G. KARNIK, J. DATED : 8th December 2009 P.C. 1. Heard. 2. By this application, petitioner challenges the order dated 29th April 2009 passed by the learned Special Metropolitan Magistrate rejecting the applicant's application for recalling of a witness and the order dated 16th June 2009 passed by the Sessions Court rejecting the revision application. 2 3. The petitioner is the original accused who is being prosecuted u/s.138 of the Negotiable Instruments Act. After examination of the complainant, the petitioner's advocate completed the cross examination of the complainant and the prosecution case was closed. The statement of the petitioner accused was also recorded u/s.313 of the Code of Criminal Procedure. Thereafter, the petitioner made the application for recalling of the complainant for further cross examination on six points mentioned in paragraph no.4 of the application. The application was rejected and the order of rejection has been confirmed by the Sessions Court. 4. Relying upon a decision of the Supreme Court in Rajendra Prasad Vs. Narcotics Cell, AIR 1999 SC 1292, learned counsel for the petitioner submitted that a witness can be recalled at any stage. Questions on six material points were not put to the complainant through error. "To err his human" and therefore petitioner should be given an opportunity to correct the error and the complainant should be recalled. 5. In Rajendra Prasad (Supra) the prosecutor had made a request to recall a witness. That application was rejected and the High Court confirmed the order. The Supreme Court while reversing the decision of the High Court held that while the prosecution cannot be allowed to recall a witness to fill up the lacunaes in the prosecution case, held that there is a distinction between filling up the lacunaes and oversight committed by the Public Prosecutor during the trial either in not producing the relevant material or not eliciting the relevant answers from a witness. The present case appears to be clearly a case wherein the defence wants to fill up the lacunae in the cross examination and 3 that too after the statement u/s.313 of the Cr.P.C. has been recorded. In my view, the present case is distinguishable on facts from the case of Rajendra Prasad (supra). 6. For these reasons, there is no merit in the application which is hereby dismissed. (D.G. KARNIK,J.)