1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.877 OF 2009, CRIMINAL WRIT PETITION NO.878 OF 2009 AND CRIMINAL WRIT PETITION NO.879 OF 2009 M/s.Uttam Overseas Pvt Ltd & Ors. .. Petitioners (In all petitions) Versus State of Maharashtra & Anr. .. Respondents (In all petitions) Mr.Shailesh Kumar for the petitioners in all petitions. Ms.A.T.Jhaveri, A.P.P for the State in Cri.W.P.No.877/09. Ms.S.V.Gajare, A.P.P for the State in Cri.W.P.No.878/09. Mr.H.J.Dedhi, A.P.P for the State in Cri.W.P.No.879/09. CORAM : A.S.OKA, J. DATE : 16 th June 2009. P.C.: . Heard learned counsel appearing for the petitioners. Facts in these petitions are more or less identical. Hence, the petitions can be disposed of by a common order. For the sake of convenience, a reference has been made to the facts of case in Writ Petition No.877 of 2009. The 2 petitioners have been arraigned as an accused in a complaint filed by the 2 nd respondent under section 138 of the Negotiable Instruments Act, 1881. After final arguments were heard, an application was made by the 2 nd respondent complainant invoking provisions of section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). In the said application it was pointed out that the affidavit in lieu of evidence of the witness of the complainant was filed in the Court on 08 th August 2006 and the said affidavit bears the seal of learned Magistrate but due to oversight, the learned Magistrate did not sign the affidavit. A prayer was made in the said application for recalling the witness to explain as to how the said affidavit remained to be signed by the learned Magistrate. The said application has been allowed by the learned Magistrate. Revision application preferred by the petitioners has been dismissed by the Sessions Court. The learned counsel appearing for the petitioners submitted that the affidavit in lieu of evidence was filed long back on 08 th August 2006. He stated that during the course of cross-examination, the aforesaid lacuna in the affidavit was brought to the notice of the 2 nd respondent complainant but no steps were taken by the 2 nd respondent complainant till February 2008. he submitted that in the meanwhile cross-examination of the witness was completed and even the statements of the accused under 3 section 313 of the said Code were recorded. He pointed out that application under section 311 of the said Code has been made after the final arguments were heard in the complaint. He submitted that the application made by the 2 nd respondent is nothing but an attempt to fill in serious lacunas in prosecution case at the fag end after the final submissions on the complaint are made. He, therefore, submitted that the Courts below have committed an error by granting the said application. 2. I have carefully considered the submissions. The learned Magistrate has noted in the impugned order that stamp/seal of the learned Magistrate has been affixed on the last page of the affidavit in lieu of examination-in- chief. He has referred to the roznama of the case which records that affidavit in lieu of examination-in-chief of the complainant has been taken on record. The learned Judge noted that on the basis of the said affidavit even the documents produced by the complainant were exhibited. The affidavit in lieu of examination-in-chief was tendered before the learned Magistrate on 08 th August 2006. The learned Magistrate permitted cross-examination to be made on the basis of the said affidavit. The said affidavit has not been signed by the learned Magistrate. It is true that the petitioners might have pointed out this flaw during the course of cross-examination. The fact remains that 4 there appears to be mistake on the part of the learned Magistrate for which the complainant cannot be allowed to suffer. The said lacuna cannot be said to be an inherent lacuna in prosecution case. It is merely a procedural lacuna. In the circumstances, no fault can be found with the discretionary order passed by the learned Magistrate which has been confirmed by the Sessions Court. The Petitions are rejected. However, all contentions of the petitioners on merits of the complaints are expressly kept open. 3. At this stage, learned counsel for the petitioners states that after the witness of the complainant is recalled, the petitioners may be permitted to cross- examine the said witness on all the aspects. A limited cross-examination after recall can be always made. If the petitioners desire to cross-examine the witness on all the aspects, they will have to make appropriate application before the learned Magistrate in that behalf which will be decided by the learned Magistrate in accordance with law. (A.S.OKA,J)