((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1288 OF 2008 IN APPEAL NO.104 OF 2007 Sanjay Laxman Pathare Petitioner versus HDFC Limited and another Respondents Kapil Dave for petitioner. A.J.Dedhia for respondents. CORAM : SMT.NISHITA MHATRE, J. DATE : 01st July 2008 PC : 1. The petition has been filed against the order passed by the Sessions Court in Criminal Appeal No.104 of 2007 on an application filed by the applicant for leading further evidence under section 391 of the Code of Criminal Procedure ("Cr.P.C." for short). It is submitted on behalf of the applicant that he was unable to lead evidence or to cross-examine the complainant since he had not engaged an advocate. This was because of the financial difficulties that the petitioner was facing. It is submitted that under section 304 of the Cr.P.C. it was incumbent on the Metropolitan ((-2-)) Magistrate to enquire whether the petitioner, who was an accused before the Court, required legal aid. It is then submitted that the application which has been filed by the petitioner is not for recalling the complainant but for cross-examining the Branch Manager of City Union Bank in whose bank the petitioner had an account. It is also submitted that there is ambiguity in the evidence led before the learned Magistrate and, therefore, it is essential that the application filed by the petitioner under section 391 of the Cr.P.C. be allowed. 2. Section 304 of Cr.P.C. undoubtedly gives a right to an accused to have legal aid. However, sub section (3) of the said section clearly stipulates that the State Government may, by notification, direct that the provisions of sub sections (1) and (2) should apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session. No notification has been brought to my notice which has been issued under sub section (3) of Section 304, requiring the learned Magistrate to enquire whether the ((-3-)) accused in a trial under section 138 of the Negotiable Instruments Act, 1888 requires legal aid. 3. The submission that the application is made not for calling the complainant but only for cross-examining the banker of the accused and, therefore, the application should be allowed, is also unsustainable. The main ground on which this submission is made is that the cheque in question has not been signed by the petitioner and, therefore, it was necessary to call the banker to support the case of the petitioner. If, indeed, the petitioner had not signed the cheque, the petitioner had ample opportunity to call his own witnesses. The matter was adjourned time and again on atleast five occasions for the petitioner to either cross-examine the complainant or to bring his evidence before the Court. Therefore, this submission is also without any merit. 4. The next submission is that there is ambiguity in the evidence led before the Trial Court. Assuming there is such an ambiguity, the Trial Court assessed the evidence and found the petitioner guilty. The Sessions Court can ((-4-)) always assess the evidence again and decide whether there is in fact any ambiguity which the Trial Court has not considered and which would lead to the petitioner being acquitted. 5. Therefore, in my opinion, the application filed under section 391 need not be entertained. Petition dismissed. JUDGE