1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1871 OF 2010 Madhavdas Gulabray Khanchandani ..APPLICANT -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. R.R. Mantri, advocate for applicant Mrs. B.R. Khekale, A.P.P. for respondent no.1 Mr. A.M. Gholap, advocate for respondent no.2 ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 29th September, 2010. PER COURT : 1. This application under Section 482 of the Criminal Procedure Code is being disposed of finally, at the stage of admission, by consent of learned Advocates for the parties. 2. The applicant is the original complainant and the respondent is the original accused in the context of a private complaint case registered before the learned Judicial Magistrate (F.C.), Ahmednagar vide S.T.C. No. 84/2009 for the offence under Section 138 of the Negotiable Instruments Act, 1881. It is not necessary to elaborately set out the facts, which gives rise to the private complaint case. Suffice it to say that the evidence of present applicant (complainant) was completed and the case was 2 scheduled for recording the evidence of the respondent. The respondent was supposed to enter into defence, if he was desirous. At that juncture, he gave an application (Exh-36) seeking recalling of the applicant (complainant) under Section 311 of the Criminal Procedure Code for the reason that few questions were required to be put to the applicant in respect of transaction which entailed the issuance of cheque in question. The learned Magistrate heard both the sides and granted the application vide the impugned order. 3. The applicant submits that the impugned order is arbitrary and perverse because the intention of the respondent was to protract the matter and to fill up the lacunas, which were self created by him. The applicant further submits that such opportunity was not required to be given to the respondent, particularly, only for the reason that he had changed defence Advocate. 4. Heard learned Advocate for the parties. 5. True, the scope of Section 482 is rather restricted and ordinarily discretionary orders of the Courts below need not be interfered with, unless it is noticed that the same suffer from vice of arbitrariness, capriciousness or perversity. Naturally, the question 3 is whether the impugned order is perverse or arbitrary. 6. The tenor of the application filed by the respondent reveals that the recalling of the applicant (complainant) was sought because certain explanation regarding second reply given to the notice was not brought on record. That is the only reason stated in the application. The trial Court noticed that the original Advocate appearing for the respondent was changed after the statement of the respondent was recorded under Section 313 of the Criminal Procedure Code. It is observed by the learned Magistrate that on 10.03.2010, the Vakalatnama of Shri. Bafna, Advocate was filed and thereafter the application was moved on the next date i.e. 23rd March, 2010. It is obvious, therefore, that the application was filed only because the Advocate appearing for the respondent was changed and the brief was transferred from one Advocate to another. It is pertinent to note that the respondent did not attribute any ill intention to his previous Advocate nor it can be said that the earlier Advocate had committed any mistake while cross examining the applicant. It is to be presumed that Advocate acts on the instructions of the client. Purport of Section 311 is to give leave to do justice in exceptional cases where the certain material evidence is not placed on record and is sought to be so placed by seeking leave under Section 311 of Criminal Procedure Code. The 4 provision can not be invoked in order to fill up the lacunas or to rectify the mistake purportedly committed by the earlier cross examination. If such kind of exercise is permitted then it would be endless and the trial will be fluctuating without achieving logical end even in given time. It is particularly flaws in cases under Section 138, which are required to be disposed of within statutory period of six months as contemplated under the said Act. Ordinarily, in such summary cases, exercise of power under Section 311 of the Criminal Procedure Code, therefore, shall be by way of exception and not just for asking. 7. Mr. Gholap, the learned Advocate appearing for respondent seeks to rely on "Iddar and Ors. Vs. Aabida and Anr." (2007 Cri.L.J. 4313). He referred, particularly, to certain observations in paragraph 11 of the Judgment in the above case. It has been observed : "The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in brining the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an 5 improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." 8. Perusal of the above observations would show that the Apex Court has also sounded word of caution while exercising the powers under Section 311 of the Criminal Procedure Code and has observed that discretion conferred is to be exercised judiciously. It is observed that "wider the power the greater is the necessity for application of judicial mind." In the present case, mere change of the Lawyer could not have been a ground for recalling of the applicant i.e. complainant. For, the respondent could have examined himself or the Advocate who had replied the notice and given explanation through the second reply for the 6 purpose of which the recalling was sought. Merely because Advocate-Mr. Bafna opined that there was certain lacuna in the cross examination, it could not be said that there was genuine need to recall the applicant to face further cross examination. It could be perception of Mr. Bafna Advocate and there was remedy available by allowing the respondent to examine himself in defence in order to prove the second reply of the notice and to explain the fact situation for the purpose of which the recalling of the witness was sought. In this view of the matter, the impugned order is quite perverse and unsustainable. 9. In the result, the application is allowed. The impugned order is quashed. (V.R.KINGAONKAR) JUDGE gas/cri1871.10