1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.3294 OF 2009 Sou. Deepali Girish Bajaj ...Petitioner. v. Mrs. Sheetal Gopal Zanwar & Anr. ...Respondents. Mr.S.R.Nargolkar, adv. For the Petitioner. Ms.A.R.S.Baxi, adv. For the Respondent No.1. Ms.S.V.Gajare, APP for the Respondent No.2. CORAM : J.H. BHATIA, J. DATED : JULY 20, 2010 P.C. 1 Heard the learned counsel for the parties. Petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act. against the Respondents and it was registered as Summary Trial Criminal Case No.37751/07. In that case, the accused pleaded not guilty and thereafter, complainant had filed affidavit in examination-in-chief on 14.1.2008. She was cross-examined between 13.1.2009 to 15.4.2009. Thereafter, she also examined two witnesses in support of her case including witness from the bank to prove that the cheques were dishonoured. After recording of the evidence for the complainant was completed, she filed an application Ex.47 seeking direction to recall the complainant herself for further examination-in-chief to prove one 2 agreement dated 27.8.2008 between the parties whereby attempt was made to settle several disputes including five cases under Section 138. That application came to be rejected by the impugned order dated 9th October, 2009. 2 The learned counsel for the petitioner relied upon Iddar and Others v. Aabida and another CDJ Law Journal 2007 SC 819 in support of his contention that under Section 311 of the Cr.P.C. Court can call any witness and also may recall any witness, whose evidence is already recorded, at any stage of the proceeding before the judgment is delivered. The Supreme Court observed thus in paragraph 11: “11. 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 or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applied to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of 3 inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” Section 311 empowers the Court to summon any person as a witness or examine any person in attendance, though not summoned as witness, or recall and re-examine any person already examined; at any stage of any enquiry, trial or other proceeding and it also provides that Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 3 Case of the present petitioner is under Section 138 of the Negotiable Instruments Act on the ground that the respondent/accused had issued a cheque of Rs.50,000/- which, on presentation to the drawee bank, was dishonoured. In spite of notice demanding the amount , respondent had failed to make the payment within the stipulated period and, therefore, offence under Section 138 was committed. To prove the offence under Section 138 complainant had examined herself and two other witnesses including bank officer. Evidence of the complainant herself was recorded upto 15.4.2009 and thereafter, other witnesses were 4 examined and cross-examined. According to the petitioner, some agreement had taken place on 27.8.2008 in respect of number of disputes between the parties. However, terms of that agreement were not fulfilled. According to the complainant, she wanted to prove that agreement to show that there was admission by the respondent that the amount of the cheque was received. It appears that the said alleged agreement was not executed between the petitioner alone and the respondent alone. That agreement was executed between the petitioners and three other persons on one side and the respondent and four other persons on the other side. Taking into consideration the facts and circumstances even though the Court is empowered under Section 311 to call and recall any witness, it is not bound to exercise that discretion on the request of any of the parties. Second part of the Section 311 makes it clear that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Case under Section 138 of the Negotiable Instruments Act has to be proved on the basis of evidence, which the complainant had already produced. Proof of the agreement dated 27.8.2008 was not essential for the purpose of proving offence under Section 138. Even the Supreme Court in Iddar and Others (Supra) had also cautioned that discretion 5 conferred on the Court under Section 311 should be exercised judiciously, as the wider the power the greater will be necessity for application of judicial mind. In my considered opinion, the trial Court rightly exercised discretion not to recall the complainant for further examination-in-chief only to prove some agreement pending the criminal case. Therefore, I do not find any illegality, irregularity or impropriety in the impugned order. 4 For the aforesaid reasons, petition stands dismissed. (J.H. BHATIA,J.)