- 1 - 1770 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.WRIT PETITION NO.1770 OF 2011 Shri Ulhas Gangadhar Dubey .. Applicant vs 1.State of Maharashtra 2.Shri Ramjeet Kushwaha.. Respondents Mr.J.M.Puranik for Applicant Mr.R.M.More APP for Respondents CORAM: K.U.CHANDIWAL, J DATE: 21st September,2011 P.C. 1. Heard. In proceedings under section 138 of the Negotiable instruments Act of 2002 the evidence in chief commenced on 5.11.2003 and the Complainant was cross examined from 31.1.2004 to 19.3.2005 still the Accused/Applicant desires the Complainant to be recalled even after statement under section 313 Cr.P.C. - 2 - 1770 2. Learned counsel for Accused-Applicant has placed reliance to the judgment in the matter of (i) W.P.No.1086/2009 (Vikas S/o Sureshrao Waghmare vs Moreshwar S/o Bhausaheb Kadam) of this Court, (ii) Dipak Gangaram Ahirrao vs.State of Maharashtra in W.P.259/2006 dated 27.6.2006 and of the Apex Court in the matter of Mohanlal Shamji Soni vs Union of India AIR 1991 Supreme Court 1346. 3. There cannot be quarrel on the legal proposition in the wide powers of the Court in terms of section 311 of Cr.P.C. However, a caution of note is provided all throughout which is in-built in section itself to the effect that it should appear to the court that it is essential to a just decision of the case by getting at the truth by all lawful means. It is indicated in the matter of Mohanlal Soni that it should be borne in - 3 - 1770 mind that aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. 4. Going to the facts of the case, it is apparent that Accused-Applicant was arrayed as partner of the firm which owed liability. Discharge of other partners has its ramifications. However, if any document of partnership is with Accused-Applicant law provides that other remedies recall of complainant in terms of section 311 Cr.P.C. is not desirable. Added to it is record illustrates of possible opportunities are available by Accused-Applicant to protract the matter. Petition lacks merit. - 4 - 1770 Dismissed. Observations to be restricted to the present situation only. K.U.Chandiwal,J