(1) CRI.WP. 808.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 808 OF 2010 Nivrutti S/o Ramchandra Bagul, Age : 57 years, Occu.: Agri. & Business, R/o Behind Hotel 'Surya', Maldad Road, Sangamner, Tq. Sangamner, Dist. Ahmednagar .. Petitioner (Orig. Accused) VERSUS Ashok S/o Vithoba Jadhav, Age : 40 years, Occu.: Business, R/o. Sangamner, Tq. Sangamner, District Ahmednagar .. Respondent ... Mr. R.D. Bhalerao, Advocate for the Petitioner ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH OCTOBER, 2010 ORAL ORDER:- 1. Heard. 2. By this Petition, the petitioner challenges order dated 11.8.2010 rendered by the learned Judicial Magistrate (F.C.) on application of the respondent in S.T.C. no. 433 of 2005, whereby re- examination of the respondent was permitted by the learned Magistrate. (2) CRI.WP. 808.2010 3. The respondent filed two separate Criminal complaint cases which were registered vide S.T.C. 433 of 2005 and S.T.C. 434 of 2005 for offences under section 138 of the Negotiable Instruments Act. It appears that both the Criminal cases were taken up for joint trial. The respondent filed affidavit in the form of examination in chief. He was cross- examined. Though he referred to all the relevant documents in his affidavit filed, instead of examination-in-chief in Court, the documents which were filed in one of the private complaint case i.e. S.T.C. no. 433 of 2005 were exhibited by the trial Court. Still, however the documents referred and filed in another complaint case i.e. STC 434 of 2005 were not exhibited and, therefore, he sought permission for re-examination. That has been granted by the trial Court vide the impugned order. 4. Mr. Bhalerao would submit that such permission cannot be granted as it could amount to filing up of the lacuna. He would further submit that the trial Court recorded the cross-examination and observed that no further re-examination was necessary (3) CRI.WP. 808.2010 or sought and, therefore, the stage of allowing re- examination was not available while passing the impugned order. He would further submit that the impugned order is arbitrary and illegal. 5. What appears from the record is that the impugned order is rendered in the exercise of discretion available under section 311 of the Code of Criminal Procedure. The trial Court may allow examination of a witness if it is found expedient and in the interest of justice to do so. The impugned order shows that the documents filed in context of STC no. 434 of 2005 were referred in the affidavit filed by the respondent, but were not given exhibit numbers and, therefore, for limited purpose of referring the said documents, the examination-in- chief was sought. It is explicit that the respondent inadvertently referred to the documents or that the Court did not consider the recitals of his affidavit in proper manner. The complainant cannot be held liable for such mistake when the documents are also on record and formality of making reference to such documents is required to be complied with. (4) CRI.WP. 808.2010 6. The discretionary order of the learned Magistrate is not required to be re-considered and reviewed in the exercise of the writ jurisdiction and particularly in view of "Shalini Shyam Shetty and anr. VS. Rajendra Shankar Patil 2010(7) SCALE 428". Hence, the Petition is dismissed. Sd/- [V. R. KINGAONKAR, J.] arp