SSK/901 1 appln 5761 & 5762.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NOS. 5761 & 5762 OF 2010 M/s. Ahura Mazda Dairy Farm Pvt. Ltd. & Ors. ....Applicants Versus Suresh Gopaldas Chawala & Anr. ...Respondents Mr. Jahangir Khajotia, Advocate for the applicants. Mr. Madhukar Dalvi i/b. Shri S. K. Legal Associates, Advocates for respondent no.1. Mr. A. S. Shitole, APP for the State. CORAM : RANJIT MORE, J. DATED : 23rd NOVEMBER, 2011. P.C.: In both the criminal applications, the applicants are accused and 1st respondent is the complainant. The 1st respondent/complainant filed criminal cases being CC Nos. 1890/SS/2005 and 1866/SS/2005 against the applicants/accused under Section 138 read with Section 141 of the Negotiable Instruments Act. The 1st respondent/complainant filed affidavit of evidence in both the complaints and annexed relevant documents along with these affidavits of evidence. However, the documents of CC No. 1866/SS/2005 were wrongly annexed to affidavit of evidence in CC No. 1890/SS/2005. The 1st respondent/complainant, thereafter, realised this mistake and filed separate applications in both the complaints to rearrange the documents in respect of these two complaints. These applications were granted by the trial court. Counsel for the applicants submitted that there SSK/901 2 appln 5761 & 5762.10 are no provisions in Cr.P.C. under which these applications could have been granted. Learned counsel for the respondent no.1, however, relied upon the Apex Court judgment in the case of Zandu Pharmaceutical Works Ltd. versus Mohd. Sharaful Haque & Anr. reported in (2005)1 SCC 122. The observations made by the Apex Court in Para 8 thereof, makes it clear that all courts whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest”(when the law gives a person anything, it gives him that without which it cannot exist. Similar observations are made in Para 5 in the case of Gowardhan Das versus State of Maharashtra & Anr. reported in 2007(2) Bom.C.R. (Cri.)826. In that view of the matter, I do not find any error in the order of the Magistrate under which respondent no.1/complainant is allowed to interchange the documents. 2. The applicants have also challenged the order of the Magistrate allowing respondent no.1/complainant’s applications to recall the complainant/PW-1 for cross-examination under Section 311 of the Cr. P.C.. These applications were opposed by the applicants on the ground that the complaints are at the stage of the arguments and the respondent no.1’s applications could not have been allowed. I am not impressed by the submission of the applicants. It is well settled position that the powers under Section 311 can be exercised at any stage. The affidavits of SSK/901 3 appln 5761 & 5762.10 evidence were given by respondent no.1/complainant on 14th September, 2009. However, he could not remain present on that day on the ground of his ill-health and he applied for personal exemption. The said application was simply “filed and the Magistrate thereafter proceeded to record submission of the applicants/accused under Section 313 of the Cr.P.C.. In the absence of cross-examination of the complainant, the Magistrate could not have proceeded to record the submission of the accused under Section 313 of the Cr.P.C.. The Magistrate realised his mistake, and therefore, allowed respondent no.1’s applications to recall the complainant/PW-1 for cross-examination. The prejudice caused to the applicants is compensated by directing the complainant to pay cost of Rs.1000/- to them. The Magistrate exercised his discretion, and therefore, I am not inclined to interfere in the applications. The applications are, accordingly, dismissed. (RANJIT MORE, J.)