:1: 817.818.11.wp ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.817 OF 2011 WITH CRIMINAL WRIT PETITION NO.818 OF 2011 Euro Vistaa Trading Co Ltd ..Petitioners Vs. State of Maharashtra and Ors ..Respondents Mr. Anand Kumar,for Petitioners. Mr. Ashok Tajane,for Respondent Nos.2,3,4,5 and 6. Mrs. U. V. Kejriwal,APP for State. CORAM :- SMT. R. P. SONDURBALDOTA, J DATE :- NOVEMBER 21, 2011 P.C. 1 Heard both parties. 2 Rule. Rule made returnable forthwith. By consent of the parties, the Petitions are immediately taken up for final hearing . 3 This is a common order on above two Petitions that challenge orders passed by the Learned Metropolitan Magistrate, exercising his discretion and powers under Section 311 of Cr. P .C., for recalling of witness, in proceedings under Section 138 of the Negotiable Instruments :2: 817.818.11.wp Act. The parties to both the petitions and complaints before the Trial Court are the same. The applications filed for recalling of the witnesses are identical and orders passed thereon are also identical. Therefore, both the petitions are being disposed of by a common order. 4 The Petitioners filed two complaints being CC 5812/SS/2005 and CC 5813/SS/2005 against the Respondent Nos.2 to 6 for the offence punishable under Section 138 of Negotiable Instruments Act. The trial therein was conducted together. The Petitioners filed their affidavits of examination-in-chief in the complaints on 5th October, 2007. The cross- examination of witness of the petitioners by respondent Nos. 2 to 6 started on 8th January,2008. Thereafter, effective cross-examination took place on seven days i.e. 16th January, 2008, 29th April,2008, 6th August, 2009, 1st September,2009, 1st October,2009, 16th December,2009 and 16th January,2010. Thus, cross examination was conduced on eight days during the period of more than two years. Eight months thereafter that is on 21st September,2010 respondent Nos.2 to 6 filed applications purporting to be under Section 311 of Cr. P. C. The copies of the applications are annexed at Exhibit “C” to respective petitions. Paragraphs 1 and 2 of the applications are seen to be devoted to the provisions of Section 311 of Criminal Procedure Code and various :3: 817.818.11.wp decisions of the Apex Court thereon. At para 3, the last para, the Respondent Nos. 2 to 6 stated as follows:- “In the instant case vital evidence and vital documents such as Blank cheques, their own letter stating that the cheques are given for security and our letter along with security cheques etc, are very important and significant and vital documents which complainant suppressed from this Hon’ble Court is to be brought on record which is necessary for the just decision of the case. In the present case, the State has rested with recording the statement of the accused u/s. 313 of Cr. P. C. The present application therefore be granted.” The applications are seen to contain neither any ground for recalling of the order nor the name of the witness to be recalled nor the details of the documents that were required to be produced nor the explanation for non-production of the documents earlier. Thus the applications were absolutely vague and without necessary particulars. It is well settled that the power of the court u/s 311 of Criminal Procedure Court is discretionary power, to be exercised judiciously and not arbitrarily. Therefore when the power is to be exercised at the instance of :4: 817.818.11.wp the parties to the proceedings, it is incumbent upon the applicant to show as to how the opportunity of leading evidence was inadequate for the party in addition to the absolute need of the evidence for just decision in the case. It could be either insufficiency of the opportunity or subsequent discovery of some relevant facts. In the absence of any such ground made out in the application, the Trial Court could not have allowed the application. 5 Mr. Ashok Tajane, the learned Counsel for the Respondent Nos. 2 to 6 refers to his affidavit-in-reply to the present Petition to submit that there was sufficient reason for Respondent Nos. 2 to 6 to file application under Section 311 of the Cr. P. C. The learned Counsel refers to para 11 of the affidavit-in-reply wherein Respondent Nos.2 to 6 state as follows: “With reference to paragraph 8 and 9 of the petition, it is submitted that since the present respondents are stationed at Ahmedabad, they are not in a position to properly defend the case though they have engaged advocate at Mumbai. It is submitted that for the said reasons, evidence of the present accused persons as also documents could not be produced and resultantly, the petitioner could not be put certain questions with regard to :5: 817.818.11.wp certain documents and therefore, application under Section 311 of the Code of Criminal Procedure came to be filed by the accused persons.” The averments relied upon are vague and without necessary particular. 6 Perusal of the record on the other hand shows that Respondent Nos. 2 to 6 have been given more than sufficient opportunity to cross examine the complainant. Even if some concession is required to be given in view of the fact that the Respondent Nos.2 to 6 are stationed at Ahmedabad, the cross-examination which went on for two years on eight effective dates cannot be said to be insufficient opportunity. 7 In the aforesaid circumstance, the impugned order is neither justified in law nor on facts. Hence, the rule is made absolute. The Petition is allowed.The impugned order dated 13/01/2011 is set aside. 8 The learned Counsel for Respondent Nos.2 to 6 seeks stay of operation of this order. The application is rejected. ( SMT.R. P. SONDURBALDOTA,J .)