(1) CRI.APP. 2236.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2236 OF 2010 Navnath Nagari Sahakari Patsanstha Maryadit, Parola Near Parola Urban Bank, Through Sandeep Abhiman Patil, Age : 40 years, Occu: Service, R/o Parola, Tq. Parola, Dist. Jalgaon .. Applicant VERSUS Dilip Bhila Patil, Age : Major, Occu.: Business R/o Shevge (Bk), Tq. Parola, Dist.: Jalgaon .. Respondent Mr. P.N. Kutti, Advocate for the Applicant Mr. A.K. Tiwari, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 15TH SEPTEMBER, 2010 ORAL ORDER:- 1. This is an Application filed under section 482 of the Code of Criminal Procedure. 2. The applicant is a Co-operative Credit Society and original complainant. The applicant filed private complaint case bearing SCC 132 of 2007 against the respondents for offence under section 138 (2) CRI.APP. 2236.2010 of the Negotiable Instruments Act. The evidence of the applicant was over. The defence was entered into by the respondent and certain evidence was also adduced by the respondent. The matter was scheduled for final argument after the evidence of both the sides was over. At that juncture, the applicant filed Application (Exhibit "C"-P.28) on 16.4.2010. In that Application it was stated that certain documents of significance were filed by the applicant but they were not exhibited and, therefore, the applicant desired time to study the legal provisions with a view to point out as to how it was necessary to exhibit the said documents. 3. The applicant subsequently gave an Application (Ex. "A") on 23.4.2010 seeking leave to produce certain documents viz. Vachan Chitthi, Bharna Pawati etc. and also sought permission to prove those documents by adducing available evidence. It was requested that the applicant (complainant) may be recalled for such purpose. The Application was opposed by the respondent. The learned Magistrate by (3) CRI.APP. 2236.2010 the order impugned, on hearing both the sides, dismissed the Application. 4. The Advocate for the applicant would submit that important documents could be proved by the applicant and, therefore, in the exercise of powers under section 311 of the Code of Criminal Procedure learned Magistrate should have allowed the Application. He seeks reliance on observations of the Apex Court in "Rama Paswan and ors. Vs. State of Jharkhand 2007 AIR SCW 2779". The Apex Court observed: "But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. (4) CRI.APP. 2236.2010 Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge." 5. He also referred to case of "M/s. Jagdale Mirch Masala Products (India) Vs. Kamal Foods and Anr. 2010 ALL MR (Cri.) 1783". A Single Bench of this Court held that application filed under section 311 of the Code of Criminal Procedure can be filed at any stage and it can be considered by the Court. The learned Single Judge noticed in the said case that such application was filed when the evidence of the complainant was yet to be completed and, therefore, held that no prejudice was likely to be caused to the applicant by allowing of the Application under section 311 of the Code of Criminal Procedure. The Apex Court also observed that whether such application is filed with intention to filling up of lacuna, is a subsidiary factor. At the same time it is observed that where new evidence is essential or not must depend on facts of each case, and has to be decided by the Presiding Judge. (5) CRI.APP. 2236.2010 6. In the present case, the original complainant does not refer to the documents which were sought to be filed after completion of the entire trial. The documents were filed when the respondent (accused) entered into the defence and his evidence was also completed. It is but natural that if such permission is granted, the defence is likely to be prejudiced. For, now the defence has opened all the cards and that such subsequent additional evidence would be outside the scope of the complaint itself. 7. Under these circumstances, the impugned order rendered by the learned Magistrate, cannot be deemed as perverse. Application dismissed. The applicant is at liberty to raise the issues before any other appropriate forum. Sd/- [V.R. KINGAONKAR, J.] arp