((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1801 OF 2008 Trimurti Nagari Sahakari Pat Sanstha Limited Petitioner versus Mohan Dhondiram Mali & anr. Respondents U.R.Mankapure for petitioner. Miss A.T.Javeri, APP for State. P.D.Dalvi for respondent no.1. CORAM : A.S.OKA, J. DATE : 28th April 2009 JUDGEMENT : 1. The writ petition is taken up for final disposal at the admission stage. 2. The petitioner is the complainant. The petitioner filed a complaint against the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881) read with section 420 of the Indian Penal Code. Process was issued by the learned Magistrate on the said complaint for the offence under section 138 of the said Act. The trial commenced. The petitioner filed ((-2-)) affidavit in lieu of examination-in-chief of one Rangrao Yeshwant Patil. He was cross examined by the advocate for the first respondent. Later on, statement of the first respondent under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code") was recorded. 3. Thereafter the petitioner filed an application under section 311 of the said Code. By the said application, a prayer was made for permitting filing an additional affidavit in lieu of examination in chief of the said witness. It was contended in the said application that due to inadvertent error on the part of the advocate who drafted the affidavit in lieu of examination-in-chief, necessary assertions regarding proof of demand notice and the proof of details of cheque subject matter of the complaint were not mentioned. The said application was opposed by the first respondent. By the impugned judgement and order dated 10th July 2008, the learned Magistrate rejected the said application on the ground that by filing the said application the petitioner was trying to fill up the lacuna in his evidence. ((-3-)) 4. The learned counsel appearing for the petitioner has placed reliance on a decision of the Apex Court in the case of Rajendra Prasad v/s Narcotic Cell ([1999]6-SCC-110). He submitted that by the said decision the Apex Court has explained its earlier decision in the case of Mohanlal Shamji Soni v/s Union of India (1991-Supp[1]-SCC-271). He submitted that in view of the law laid down by the Apex Court in the case of Rajendra Prasad (supra), it cannot be said that the petitioner was trying to fill up the lacuna in the prosecution case. 5. The learned counsel appearing for the first respondent opposed the petition by pointing out that the application was filed by the petitioner after recording of statement under section 313 of the said Code. He has placed reliance on the decision of the Apex Court in the case of Mir Mohd. Omar and others vs. State of West Bengal (1989-SCC[Cri]-750). He also placed reliance on certain observations made by the Apex Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd. (2009-ALL M.R.[Cri]-9489[S.C.]). ((-4-)) 6. I have carefully considered the submissions. While passing the impugned order the learned Trial Judge has referred to the decision of this Court in the case of Mohanlal Shamji Soni (supra) as well as Rama and others vs. State of Jharkhand (2007-ALL M.R.[Cri]-1732 [Cri]). 7. I have perused the affidavit in lieu of evidence of the witness Rangrao examined by the petitioner. In the said affidavit in lieu of examination in chief, a specific reference has been made to the cheque in dispute. However, there is no formal proof of signature on the cheque incorporated therein. The said witness has also referred to notice of demand dated 22nd September 2003. However, there is no reference to correctness of the contents of the said notice. The prayer for leading further evidence relates to these two documents. A perusal of the statement of the first respondent under section 313 of the said Code shows that first respondent has disputed the signature on the cheque and has contended that the notice of demand was not received by him. 8. In this context it will be necessary to ((-5-)) refer to the decision of Apex Court in the case of Rajendra Prasad (supra). Paragraphs 7, 8 and 12 of the said decision read thus:- "7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". 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. The adage "too err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but 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. After all, 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. 12. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness ((-6-)) if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at." The Apex Court has also referred to its earlier decision in the case of Mohanlal (supra). 9. The Additional evidence is sought to be led on the formal proof of the cheque and the proof of the demand notice. Reliance has been placed on both the documents in the complaint and the documents have been produced alongwith the complaint. Therefore, the alleged lacuna cannot be an inherent lacuna or the weakness in the case of prosecution. It is specifically stated in the application under section 311 of the said Code that due to inadvertent error on the part of the earlier advocate appointed by the petitioner, the affidavit in lieu of examination-in-chief is silent on these two aspects. Therefore, in the light of the law laid down by the apex Court in the case of Rajendra Prasad (supra), it cannot be said that an attempt is being made by the petitioner to ((-7-)) fill in the lacuna in the prosecution case. As far as decision of the Apex Court in the case of Mir Mohammed (supra) is concerned, the observations made therein are in the facts of the case before the Apex Court. In the case of Godrej Pacific Tec. Ltd. (supra), the Apex Court observed that the object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record. The Apex Court held that section 311 is not limited only for the benefit of an accused and it will not be an improper exercise of power to summon a witness merely because the evidence of the said witness may support the case of the prosecution. 10. In the circumstances, the impugned order is illegal and deserves to be quashed and set aside and hence I pass following order :- (a) The impugned judgement and order dated 10th July 2008 is quashed and set aside; (b) The application made by the petitioner at Exhibit-24 is hereby allowed; ((-8-)) (c) The petitioner is permitted to file additional affidavit in lieu of examination-in-chief of the witness Rangrao Yeshwant Patil on or before 29th June 2009. No further time will be granted to file affidavit; (d) It is needless to add that the first respondent will be entitled to cross examine the said witness; (e) After supplementary statement under section 313 of the said Code is recorded, it will be open for the first respondent to adduce defence evidence, if any; (f) The petition is disposed of in the above terms. (A.S.OKA, J.)