- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.3689 OF 2006 APPLICATION NO.3689 OF 2006 APPLICATION NO.3689 OF 2006 Baldev Sobha Singh Lulla ...Applicant vs. Mrs.Rukmani Prakash Asnani & Anr. ...Respondents Mr.Sanjay Bhatia for the applicant. Mr.J.Y.Yagnik A.P.P. for State Mr.Sandeep Velkar i/b Ms P.G.Bhatia for Respondent No.1 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 23,2008 : JULY 23,2008 : JULY 23,2008 P.C.: P.C.: P.C.: 1. Heard learned Advocate for the petitioner and the learned Advocate for the first Respondent. The first respondent is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act,1881. The applicant has been arraigned as an accused in the said complaint. 2. An application was made by the Applicant under section 311 of the Code of Criminal Procedure,1973 for recalling the first Respondent complainant for further cross examination. The said application was rejected by the learned Magistrate. Thereafter, another application was moved by the applicant at the stage when the complaint was fixed for arguments. The second application was essentially made for production of share register for the purpose of proving the share certificates produced by the applicant which were marked as Articles by the learned Judge. The said application was rejected by the order dated 10th August 2006 by the learned Magistrate by observing that the share certificates will be - 2 - looked into provided they are relevant to the fact in issue. 3. The learned counsel for the first respondent on instructions states that the first respondent has no objection if the share certificates are exhibited and are admitted in evidence. 4. The learned counsel for the applicant submits that even if the share certificates are admitted in evidence by consent of the parties, recall of first respondent-complainant is necessary as certain other questions are required to be put to the first respondent. He, therefore, submitted that by setting aside the order dated 2nd June 2006, the first respondent be recalled for further cross examination. 5. I have carefully considered the submissions. The statement made by the learned counsel for the first respondent that share certificates marked as Articles by the learned Judge be admitted in evidence and be marked as exhibits is accepted. It will be necessary to refer to the grounds set out in the application under section 311 of the said Code made by the applicant. Paragraphs 3 to 5 of the said application reads thus : "3) That the accused had produced the documents i.e. Share certificates held in escrow through one Mr.Laxman Kanal. The said share certificates were produced and marked - 3 - "Article 1" and marked ‘X’ for identification. 4) That the accused states that since the Share Certificates were not forthcoming and not produced before the Hon’ble Court, the accused had reluctantly prayed for production of the said Share Certificate held in escrow by summoning the said Mr.Laxman Kanal. 5) That the accused states that unless the said Share Certificates are exhibited, the same cannot be relied upon and considered at the stage of hearing." 6. Now the learned counsel for the first respondent has given consent for admitting the share certificates in the evidence and for marking the same as exhibits. In view of the consent granted by the first Respondent, now no case is made out for recalling the first respondent. Accordingly, no case for interference is made out in this application under section 482 of the said Code. Application is accordingly rejected. 7. The learned Trial Judge will mark the concerned share certificates as exhibits in view of the consent granted by the first Respondent. 8. All contentions of the parties on merits of the pending complaint are expressly kept open. - 4 - JUDGE JUDGE JUDGE