1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.177 OF 2010 Shobha w/o Dilip Khiwansara Petitioner/accused vs Shri Gopal Tukaram Mahajan Respondent/complt. ---- Shri A.M.Gholap Advocate for the Petitioner. Coram : P. R. Borkar, J. Date : March 10, 2010 P. C. 01. Heard Shri A.M.Gholap, learned Advocate for the Petitioner. 02. Present petition is filed by the accused in S.C.C. No.381 of 2003 challenging the order passed on 16.12.2009 below Exhibit 99 in said case by the learned J.M.F.C., Muktainagar. Present Respondent-complainant has filed the said criminal case against present petitioner for committing offence under Section 138 of the Negotiable Instruments Act. 2 3. After issuance of summons, on 24.9.2004 petitioner-accused appeared in the matter and pleaded not guilty. Thereafter on 27.4.2005, the respondent-complainant filed affidavit in lieu of examination-in-chief at Exhibit 45. On 10.7.2005, the learned Magistrate recorded further examination-in-chief of the complainant. However, admittedly, the complainant is yet not cross examined by the petitioner. 04. On 12.6.2006, petitioner made an application at Exh.75 for directions to the respondent-complainant to produce certain documents and for day-to-day trial. Respondent opposed the application vide his say at Exh.78. The learned Magistrate rejected the said application. Thereafter complainant vide applications at Exhibits 81 and 93 filed documents with lists. 05. The Respondent-complainant on 4.4.2009, although his examination-in-chief has been recorded long back, filed application at Exh.99 3 praying that the documents produced with Exhibits 81 and 93 be exhibited and admitted in evidence. That prayer was opposed by accused-present petitioner vide his say at Exh.100. However, the learned Magistrate was pleased to pass the impugned order on 16.12.2009 on Exhibit 99. 06. The learned Magistrate in his order observed that the documents which were referred to in the affidavit filed in lieu of examination-in- chief or in further examination in chief, ought to have been exhibited immediately. However, those were not exhibited, but that could be done at subsequent stage. He further observed that so far as postal receipt is concerned, it was pointed out that in the affidavit there was no reference to sending the notice by R.P.A.D. The learned Magistrate observed in paragraph 2 that the complainant wanted that the court should exhibit the letter of the post dated 21.8.2003, letter of the Central Bank of India dated 15.7.2003, R.P.A.D. acknowledgment dated 5.8.2003. He also wanted that the closed envelope of notice should 4 be opened and the contents of the notice be held to have been proved. However, all these documents should have been produced at the time of leading evidence, but that was not done because of the mistake of the Advocate of the complainant and time of 4-1/2 years was lapsed. 07. In paragraph 3 of his order, the learned Magistrate observed that the objection of the defence regarding lapse of time and some negligence on the part of the Advocate of the complainant was right. However, since the documents were on the file of the court, those can be exhibited even at a later stage. It is further stated that the complainant was yet to be cross examined by the accused and it is preferable that the complainant should be further examined under Section 311 of the Code of Criminal Procedure, 1973 and by doing so, both sides would get equal opportunity. In the result, the order is passed directing that the documents which were already produced should be exhibited and the complainant should be recalled for further examination-in- 5 chief under Section 313 of Cr.P.C. 08. Shri A.M. Gholap, learned Counsel for the Petitioner-accused relied upon several authorities. The entire law regarding stage when this court should interfere in exercise of its extra-ordinary writ jurisdiction under Articles 226/227 of the Constitution, is summarised by the Supreme Court in the case of Surya Dev Rai vs. Ram Chander AIR 2003 SC 3044. The learned counsel extensively read out all propositions of law stated in the said case and more particularly in paragraphs 38 and 39 of the judgment. In sub paras (5) and (7) of para 38, the Supreme Court has laid down the requirements to be satisfied for the purpose of issuance of warrant of writ of certiorari or exercise of supervisory jurisdiction to correct the error of law or the facts. Sub paras (5) and (7) of para. 38 read thus: "(5). Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied. 6 (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and (ii) a grave injustice or gross failure of justice has occasioned thereby. 7. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the list." 09. After giving careful consideration to the facts of the present case and the order passed by the learned Magistrate, in my considered opinion, 7 since cross examination of the complainant- respondent has not begun, the order passed by the Magistrate is in the interest of justice. It is not that by such exercise of power, any admission in favour of the present petitioner is likely to be taken away. The Petitioner would also be entitled to object to exhibiting a particular document if not duly proved or is otherwise inadmissible. The question of admissibility of the document in evidence and its evidentiary value can be agitated even after it is exhibited during course of arguments. So, considering the facts and circumstances, I am of the opinion that this is not a case to invoke extra-ordinary jurisdiction of this court and interfere in the impugned order. 10. Hence, writ petition stands dismissed. pnd/criwp177.10 (P.R.BORKAR, J.)