- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1503 OF 2008 WRIT PETITION NO.1503 OF 2008 WRIT PETITION NO.1503 OF 2008 Mr.Bharat Sekhsaria ...Petitioner vs. The State of Maharashtra & Anr. ...Respondents Mr.Kishor Bhatia for the petitioner Mr.Y.S.Shinde A.P.P. for State Mr.Yashpal Thakar for Respondent No.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 31,2008 : JULY 31,2008 : JULY 31,2008 P.C.: P.C.: P.C.: 1. Heard learned Advocate for the petitioner and the Advocate for the second Respondent. The second Respondent is the original complainant in a complaint filed under section 138 of the Negotiable Instruments Act,1881. After closure of the evidence, an application was moved by the second respondent under section 311 of the Code of Criminal Procedure,1973 seeking permission to examine a chartered Accountant. The permission was sought on the ground that examination of the said witness was necessary for proving the certified accounts statement of the financial year 1998-1999 of Ramakrishna Sekhsaria and one Veena Sekhsaria. It is stated in the application that though the said documents were filed before the court,the petitioner-accused disputed the said documents and therefore, evidence will be required to be adduced of the said witness for proving the said documents. The said application was rejected by the learned Magistrate. In the Revision Application filed by the second Respondent, the - 2 - Sessions Court has interfered and has allowed the application made by the petitioner under section 311 of the said Code. 2. In support of the challenge to the order of the Revisional court, the learned counsel for the petitioner submitted that when the complaint was at the stage of hearing of the final arguments, an application was belatedly made by the second Respondent and therefore, the learned trial Judge was justified in rejecting the said application. He submitted that prejudice will be caused to the petitioner-accused if the second Respondent-complainant is permitted to examine the said witness. The learned counsel for the second Respondent supported the impugned Judgment and order. 3. I have considered the submissions. It is an admitted position that the documents which are sought to be proved by examining the chartered Accountant are already filed on record of the complaint. In this petition invoking Article 227 of the Constitution of India and under section 482 of the said Code, it is not possible to interfere with the discretionary order passed under section 311 of the said Code by permitting the second Respondent to examine the witness. If the petitioner is permitted to recall the other witnesses examined by the second respondent and if the petitioner is permitted to lead evidence, there will not be any prejudice to the petitioner if the second Respondent is permitted to examine - 3 - the witness. 4. Hence, I pass the following order : i) Impugned order is confirmed. ii) After the second Respondent examines the witness, it will be open for the petitioner to recall the other witness examined by the second respondent for further cross examination. It will also be open for the petitioner to lead further evidence in the light of evidence which is brought on record by examining the said witness of the second respondent. iii) All contentions of the parties on merits of the pending complaint are expressly kept open. iv) The writ petition is disposed of accordingly. JUDGE JUDGE JUDGE