( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 679 OF 2009 Raosaheb s/o Tulshiram Karape PETITIONER VERSUS Dwarkadas Nagari Co-op. Bank Ltd., Beed. RESPONDENT ..... Mr. B.S. Kudale, advocate for the petitioner. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th August, 2009] PER COURT : 1. Heard. 2. Being aggrieved by common order rendered below Exh-52 and Exh-55 in S.C.C. No. 410/2006, original accused has preferred this petition. 3. The respondent Bank filed a private complaint ( 2 ) case for offence punishable under section 138 of the Negotiable Instruments Act. The then Branch Manager was examined as PW1 and his authority letter was filed on record which he referred to during examination-in-chief, but the same was not admitted in evidence by exhibit number. Therefore, application (Exh-52) was filed to give exhibit number of admitted document in evidence. So also, the Branch Manager, who filed the complaint case was examined as CW3 – Shri Sawant. The authority letter issued in favour of CW3 Shri Sawant to institute the private complaint case, was, however, not filed. The respondent Bank gave another application (Exh-55) to allow filing of such copy of authority letter alongwith request to recall the witness. After hearing both the sides, the learned Judicial Magistrate invoked powers under section 311 of the Criminal Procedure Code and allowed both the applications. 4. It is argued that the applications could not have been granted because the attempt of the respondent is to fill up the lacunae caused in the process of adducing evidence. Reliance is placed on certain ( 3 ) observations in “Geenu Rakesh Khurana v. Badjate and Company and another” 2008 (3) Bom.C.R. 542 and “Umesh Nanaji Shinde v. Moreshwar Namdeo Raut” 2007 ALL MR (Cri.) 2433. In “Geenu Rakesh Khurana” (supra), the Court noticed delaying tactics and, therefore, the application was not entertained under section 482 of the Criminal Procedure Code whereby the order of the trial Court declining recalling of witness was found justified. In “Umesh Nanaji Shinde” (supra), the learned Single Judge held that the parties should not be allowed to fill up the lacunae. It was noticed that there was no explanation as to why the documents were not produced during recording of the evidence. In the present case, the respondent explained that due to inadvertence, the authority letter could not be filed alongwith the complaint and was not referred to CW3 Shri Sawant. It is only a technical omission. It appears that attention of the learned Sessions Judge was not drawn to the view taken in “U.T. of Dadra and Nagar Haveli vs. Fatehshing Mohansing Chauhan” 2006 (3) B.Cr.C. 370 (SC). The Apex Court held that the exercise ( 4 ) of power under section 311 of the Criminal Procedure Code should be resorted to only with the object of finding out the truth on obtaining proper proof of such facts which lead to a just and a correct decision of the case. The order of the learned Magistrate is of discretionary nature. There appears no apparent perversity in the exercise of such discretion under section 311 of the Criminal Procedure Code. Hence, the writ petition is dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIWP679-09