- 1 - wp1459 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.WRIT PETITION NO.1459 OF 2009 Rashid S.OOmerbhoy .. Petitioner vs 1.State of Maharashtra 2.Municipal Corpn.of Gr.Mumbai. Respondents 3.Nadeem Oomerbhoy Mr.A.B.Pandey for Petitioner Mr.R.M.More APP for State Ms.Teja Katdare for Respt no.2 Mr.Sailesh Thakkar i.b M/s Sailesh Thakkar & Co for Respt no.3 CORAM: K.U.CHANDIWAL, J DATE: 8th September,2011 P.C. 1. Heard respective counsel. 2. In case No.5258/MB/2004 pending before the learned 41st Metropolitan Magistrate, Shindewadi, Dadar, Mumbai initiated by the BMC vs Rashid Sattar Ommerbhoy an Application was moved by the Applicants for - 2 - wp1459 recall for PW1 and PW 2 the witnesses on behalf of Municipal Corporation of Greater Mumbai. Application (Exhibit D) states that Advocate for the accused was absent for personal difficulties and another advocate for the accused has cross-examined the witnesses. Hence there is no mistake on the part of the Advocate for Accused. There is also no suggestion of the defence case put to PW 1 and PW 2. It was urged that PW 1 and PW 2 be recalled in the interest of justice as the learned Judge dismissed the same by passing an order on 6.4.2009. The learned Additional Sessions Judge did not agree with the petitioner and confirmed the order of the learned Metropolitan Magistrate of declining to recall PW 1 and PW 2. Hence, the present Application. 3. Elaborate submissions are made by the learned counsel for the Petitioners, learned - 3 - wp1459 counsel for the Municipal Corporation Greater Mumbai and the Respondent no.3 the legal representative and partner of the firm. 4. There is no controversy that on 2.8.2001 Court Receiver was appointed in the suit filed by the father of Respondent no.3. Considering the several properties including the flat in question which was in the name of the firm, Court receiver on 5.3.1992 appointed the petitioner in the capacity as Defendant no.2 as its agent. Orders specify that the flat was for residential purpose. In the affidavit of the son of the Petitioner when a Private limited company was incorporated the son of the Petitioner in unequivocal terms in Chamber Summons elaborated that the commercial activities are conducted in the said flat. - 4 - wp1459 5. My attention was drawn to the evidence of PW 1 and PW 2 by both the learned counsel. On going through the same, I find that the learned counsel representing the Petitioner was well acquainted with the facts of the case while conducting defence. PW 1 was cross-examined by the learned counsel representing the Petitioner on 21.7.2008. Another witness PW 2 was examined on 11.8.2008. Counsel representing the Accused- Petitioner declined to cross- examine. It is not that he was not afford any opportunity to cross-examine the witnesses. The allegations against the said Advocate, branding him to be negligent as is emerging in the Petition, does not stand to reason as the Advocate has apparently acted on the instructions of the Petitioner. He is still in the management of Petitioner. Averments made in para 7 and 15 are contrary to the record. - 5 - wp1459 6. I find substance in the submissions of the learned counsel for the Respondent no.3 that conduct of the Petitioner does not call for interference in orders of revision to recall PW 1 and 2 as he has not come with clean hands and is guilty of supression of material and relevant facts. 7. During the course of dictation, Mr.Pandey interrupts and says that Advocate Zahir who has cross-examined PW 1 or declined to cross-examine PW2 was not Advocate on record. This stand would not accelerate to recall the witnesses, as Advocate Zahir is still in charge of brief and present before this Court. 8. Taking all the facts into consideration though powers under section 311 of Cr.P.C. are to be reasonably exercised however, this - 6 - wp1459 is a case wherein conduct of the Petitioner does not call to exercise such powers to recall the witnesses. The powers conferred is conditioned by requirement that such exercise would be essential to the just decision of case. The Petition lacks merit. The same is dismissed. K.U.Chandiwal,J