1 CR.W.P.NO.1152 OF 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1152 OF 2010 Shri Hariom Ratanlal Agrawal, Age 57 years, Occ. Business, r/o Flat No.1, Building No.A, Suyog Aditya Residency, Bibvewadi, Pune-37. ..PETITIONER (Ori.Accused) VERSUS 1. Santoshi Mata Credit Society, Bhusawal, Through it's a/C Asstt. Shri Prasanna Chandrakant Gandhe, Age: 31 years, Occ. Service, r/o. At New Area Ward, Bhusawal, Dist. Jalgaon, Office at Jamner road, Bhusawal, Dist. Jalgaon. 2. The State of Maharashtra. ...RESPONDENTS (No.1 Ori.Complainant) ... Mr.Amol S.Sawant, Adv., for the petitioner. Mr.V.D.Rakh, A.P.P. for State. Mr.P.R.Katneshwarkar, Adv., for R.1. ... CORAM: K.U.CHANDIWAL, J. DATE:June 30th, 2011 *** 2 CR.W.P.NO.1152 OF 2010 PER COURT : 1. Heard both the Counsel extensively. Rule, made returnable and heard forthwith with the consent of learned Counsel for the parties. 2. In a proceeding under Section 138 of Negotiable Instruments Act, learned Judicial Magistrate, First Class, permitted the complainant to produce certified signed copy of resolution issued by the Bank authorizing him, to depose in the matter, said order being confirmed in revision, is questioned by the accused/applicant. 3. Mr.Sawant, while extensively arguing the matter, read to the text of the cross examination wherein the resolution is referred at Exh.29 and that witness accepts that it does not bear signature of any authority; either the Chairman or the Manager or seal of the Bank. Consequently, according to learned Counsel, permitting production of the certified copy of resolution of the Bank would be filling in the lacunae as entire defense of the accused/applicant is opened and the matter was at the stage of judgment. 3 CR.W.P.NO.1152 OF 2010 4. Learned Counsel, to stress his point, has placed reliance to the judgment of this Court in the matter of Smt. Geenu Rakesh Khurana Vs. Badjate & Co. & Anr. (2008 ALL MR ( Cri) 1917) and to the judgment in the matter of Amit Kumar Jaiprakash Singh Vs. Mahesh Mahadev Dabholkar & Ors ( 2008 ALL MR (CRI) 1919). Incidentally, both the matters arise out of proceedings under Section 138 of Negotiable Instruments Act, 1881. 5. In the case of Smt.Geenu Rakesh Khurana, the Brother Judge browsed provisions of Section 311 and Section 91 of Cr.P.C. Learned Judge has observed in paragraph No.4 as under: "4. Perusal of the records discloses that the applicants have been attempting to delay the trials of cases filed against them. The grievance of the applicants that Advocate appearing initially on their behalf did not conduct the trials properly has no substance inasmuch the applicants allowed their earlier lawyer to conduct the matters for a considerable length of time and it is only at the fag end of trials, grievance is made that earlier lawyer did not conduct the cases properly. Therefore, I find no substance in the grievance made by the applicants. No doubt under Section 311 of the Code a witness can be recalled at any stage but for recalling a witness, a party who seeks to recall the witness must make out a case for recalling of such witness. A party is not entitled to seek recall of a witness at his/her 4 CR.W.P.NO.1152 OF 2010 sweet will. In the present case, I find that the applications which were filed before the learned Magistrate were filed with a view to delay the trials. It is also pertinent to note that at some stage, the applicants entered into settlement of the dispute with the complainants and entered into settlement deed and time for payment was extended by an order passed by the Revisional Court." In the latter matter ( Amit Kumar Jaiprakash Singh's case), Sister Judge in paragraph no.3, has observed as under: " The amount of cheque in question is Rs.70,000/-. In the present case, the evidence of the complainant was led. He was cross examined. Thereafter, the arguments of both sides were heard by the learned Magistrate. During the arguments, the learned Counsel for the accused raised a defence that as the original documents were not on record, the complainant has not proved his case and hence, accused should be acquitted. At that time, application came to be made by the complainant for bringing the original documents on record. The said application came to be rejected. The case of the complainant is that, he had offered the original documents at the time of filing of the affidavit in the Court, but the same were returned to him stating that they could not be taken on record. However, it is well known fact that it is not the practice of the Court to return the document if the complainant wants to file the same on record. In fact, in the Roznama, there 5 CR.W.P.NO.1152 OF 2010 is a specific endorsement that "original documents are not filed". Clearly the application preferred by the complainant is an after thought. The complainant wanted to rectify his defect after hearing the arguments made by the learned Counsel for the accused and after the accused had revealed his defence. The learned Magistrate has rightly observed that if the application is allowed, it would allow the complainant in rectifying the defect which goes to the root of the matter. " 6. The legal position in terms of Section 311 Cr.P.C. cannot be given a go by. There is no injunction for the Judicial Officer to entertain an application seeking exercise of powers in terms of Section 311 Cr.P.C., to allow production of the document, at any stage of the matter. "At any stage of the matter", within its sweep, includes the stage of the judgment and, naturally, it would not be after pronouncement of the judgment. Learned Counsel has pointed to the notings of the Court wherein the matter was, indeed, fixed for judgment and, thereafter, the application for production of certified copy of the Resolution was given. 7. Basically, reading the record, it is not in controversy that photostat copy of the Resolution was tendered by the witness, however, since it did not bear stamp, seal and signature of the Chairman or office bearer or the Manager, the complainant produced same papers, only adding thereto the signature of the officer concerned, 6 CR.W.P.NO.1152 OF 2010 to certify that it is a certified copy. No other change in the Resolution or the names of the proposer could be seen. 8. Even if the matter is at the stage of judgment, the above referred two judgments would not come to the rescue of the accused/applicant as there is no prejudice that has been caused even if such question was put in cross examination. It cannot be said that the accused/applicant would be required to summon the witnesses who have certified the Resolution. It is the sweet choice of the accused/applicant, in which way he has to deal with the matter. The production has its own limitation, which the learned Judge, on assessment, will be adjudicating upon. It is not that a new fact is introduced by the complainant. The contentions which are finding place in the complaint, in the evidence are tried to be supported by authentic documents. 9. Taking survey of above facts, the objection raised by the learned Counsel for such production of the Resolution in the present proceedings is unjust. Consequently, writ petition (No.1152/2010) lacks merit, dismissed. Rule discharged. (K.U.CHANDIWAL) JUDGE agp/1152-10crwp