IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3790 OF 2007 Sanjay Jagannath Bhoite ..... ...... ......Applicant V/s State of Maharashtra & Anr. ..... ...... ...Respondents. Mr.M.R.Deshpande, Adv. For the applicant. Mrs.P.P.Shinde, APP For the State. CORAM: A.P.DESHPANDE, J. 24/1/08 PC: The present applicant is the accused in a case filed by respondent No.2 under section 138 of the Negotiable Instruments Act. Respondent No.2 examined the complainant but due to mistake of the counsel important documents though placed on record prior in point of time, were not proved and exhibited. Learned counsel for the applicant submits that the cheque issued by the accused-applicant and the demand notice viz. vital documents have not been proved and exhibited. Realising the mistake the complainant moved an application under section 311 of Criminal Procedure Code and sought permission to further depose in the matter. The permission has been granted by the trial Court after holding that for a just decision of the case the complainant need to be further examined so that documents can be proved. 1 2. Learned counsel appearing for the applicant has placed reliance on judgment of the learned Single Judge in the case of R.N.Kakkar v/s Hanif Gafoor Naviwala & Ors., 1996 Cri.L.J. 365 wherein it is held that under the guise of section 311 the Court cannot permit the prosecution to cure the defect or plug loop wholes or lacuna in its case. One more judgment has been brought to my notice which is reported in the case of Fatehsinh Mohansinh Chauhan & Ors. v/s Union Territory of Dadra & Nagar Haveli & Ors. 2004 Cri.L.J. 150 which deals with what tantamounts to permitting to fill in lacuna in the prosecution case and by placing reliance on a judgment of the Supreme Court in the case of Rajendra Prasad v/s Narcotic Cell, (1999) 6 SCC 110. Learned Single Judge has held that a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. An oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. As the function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 2 This lacuna as is understood need to be inherent and not an inadvertent mistake committed by the counsel in failing to prove and exhibit documents. If this be so, the contention of the learned counsel that permitting reexamination of the complainant in the instant case would amount to permitting filling in the lacuna in the complainant's case cannot be accepted. Obviously failure to prove and exhibit the material documents is mistake committed by a lawyer and as the trial Court found that for a just decision the witness need to be recalled the impugned order came to be passed which cannot be faulted. In the result there being no merit in the case same is summarily rejected. 24.1.08 3